Oblinger v. Comm'r of Soc. Sec.
| Decision Date | 18 April 2012 |
| Docket Number | Case No. 2:11-cv-623 |
| Parties | Dean C. Oblinger, Plaintiff, v. Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff, Dean C. Oblinger, filed this action seeking review of a decision of the Commissioner of Social Security denying his application for social security disability benefits. That application was filed with a protective filing date of November 5, 2007, and alleged that plaintiff became disabled on November 1, 2006.
After initial administrative denials of his claim, plaintiff was given a hearing before an Administrative Law Judge on February 18, 2010. In a decision dated May 3, 2010, the ALJ denied benefits. That determination became the Commissioner's final decision on May 24, 2011, when the Appeals Council denied review.
After plaintiff filed this case, the Commissioner filed the administrative record on September 26, 2011. Plaintiff filed his statement of specific errors on October 31, 2011, to which the Commissioner responded on January 31, 2012. No reply brief has been filed, and the case is now ready to decide.
Plaintiff's testimony at the administrative hearing is found at pages 31 through 50 of the record. Plaintiff, who was 46years old at the time of the hearing and is a high school graduate with some college, testified as follows.
Plaintiff last worked in 2004. He was a sanitation worker at a food processing plant. The job required a good deal of bending and lifting. He left that job to pursue more education and to address a child care situation. He was unable to complete his educational program, however, due to back pain. Plaintiff broke his back in 1984 and underwent a spinal fusion in 1985, and the pain has now recurred.
Plaintiff testified that his pain begins in his left hip and radiates down his left leg, although sometimes it radiates down both legs. His doctors have not recommended surgery. He experiences severe pain on a daily basis. Sometimes, depending on his level of activity the previous day, he must lie down all day. He treats the pain with Vicodin and Tylenol.
From a physical standpoint, plaintiff can stand about fifteen minutes at a time before his legs become numb. The same thing happens if he sits too long - about ten minutes in a straight chair, or thirty minutes in a recliner. He can occasionally lift a gallon of milk. He avoids climbing stairs. He can walk about 100 yards before needing to sit down.
On a daily basis, plaintiff is able to drive his children to school, and he can also drive to medical appointments. None of that involves driving more than ten minutes. He can squat, although getting back up is a problem, and can bend from the waist, but not very well. He did not believe he could do even a sedentary job because he needs to lie down six or seven hours a day just to reduce his pain level. He is able to read and watch television. Finally, he testified that he has had cortisone injections, a TENS unit, physical therapy, traction, acupuncture, and heat, but none of those have given him any lasting relief.
The medical records in this case are found beginning on page 192 of the administrative record. The pertinent records can be summarized as follows.
The first set of records consist of office notes from plaintiff's general physician, Dr. Hollern, going back to 1999. Even then, plaintiff was described as "rather stiff" with limited forward flexion of his back and as experiencing pain with left lateral bending. He was referred to a back specialist. Other notes indicate ongoing low back pain with exacerbations from time to time. Some notes indicate normal reflexes and muscle strength, but there are other notes indicating difficulty obtaining patellar reflexes. Radicular symptoms were noted as early as 2003. A 2004 note shows that plaintiff was going to see a spine specialist again. By 2006, the diagnosis was chronic low back pain with intermittent radiculopathy. A note dated June 14, 2007 showed that plaintiff had been working with Dr. Fitz but was getting no relief from his pain. Dr. Hollern reported in October, 2007 that plaintiff had been seen by a specialist, Dr. Rea, but was not a surgical candidate. (Tr. 192-235).
Dr. Fitz filled out a questionnaire reviewing his treatment of plaintiff from 2004 to 2008. Plaintiff's condition was described as chronic low back pain and left leg pain. Pertinent findings included a limited range of lumbar motion and a scar over the lumbar spine. Dr. Fitz had prescribed Prednisone and Percocet, but only for flare-ups of plaintiff's back condition. Dr. Fitz noted that epidural steroid injections had not helped. He did not think plaintiff could bend, stoop, lift over fifteen pounds, sit for prolonged periods, or climb ladders. (Tr. 236-40). Dr. Fitz also submitted treatment notes indicating that therapy had not been helpful, and also reporting fairly normal objective test results, including normal strength and sensation and negative straight leg raising. An EMG was also essentiallynegative, but an MRI study revealed spinal stenosis at L4-5 and L5-S1. The notes also show complaints of numbness and pain radiating down both legs. The report from the 2006 MRI also showed mild diffuse disk bulge at the L4-5 and L5-S1 levels and some mild bilateral foraminal narrowing at those levels, as well as degenerative changes beginning at L3. (Tr. 241-54). Later treatment notes showed increasing left leg pain, complaints of intermittent numbness and burning in the left leg, some decreased sensation in the left foot and left leg, and more steroid injections. (Tr. 288-97).
The file also contains a functional capacity assessment done by Dr. Cho, a state agency reviewer, on May 13, 2008. Dr. Cho basically limited plaintiff to work at the light exertional level with some restrictions on climbing, balancing, stooping, kneeling, crouching and crawling. Dr. Cho reported that there was a treating source statement regarding plaintiff's physical capacities in the file and that the treating source's conclusions were not significantly different from Dr. Cho's. He also stated that "the findings of the ap [attending physician] are given controlling weight." (Tr. 255-62).
Dr. Herceg, who appears to be another physician in the same office as Dr. Fitz, examined plaintiff on November 10, 2008. He reported that plaintiff had had problems for the past five or six years, and that his pain was worse with activity. Examination of the lumbar spine showed a well-healed incision. There was some kyphosis in the upper aspect of the lumbar spine, flexion and extension were limited, strength and reflexes were normal, and straight leg raising was positive on the left. X-rays showed multilevel spondylosis with disc space narrowing and anterior osteophyte formation. A CT myelogram done over a year before demonstrated degenerative changes with narrowing at the L3-4 and L4-5 levels. Dr. Herceg's impression was post laminectomy,lumbar spine, L2, lumbar spinal stenosis, and lumbar degenerative disc disease. Surgery was not recommended based on these findings. (Tr. 344-45).
On December 16, 2009, Dr. Fitz wrote a letter in which he provided his opinion as to plaintiff's functional capacity, and he attached a form used for that purpose. Dr. Fitz recited plaintiff's history of injury, diagnoses and treatment as reflected in his notes, and stated that plaintiff was limited in his ability to stand and walk for prolonged periods of time due to leg pain associated with spinal stenosis, and in his ability to sit for prolonged periods of time due to multilevel degenerative disc disease. He also could not lift over ten pounds and was limited in his ability to bend and twist at the waist. Dr. Fitz stated that plaintiff "is unable to perform the essential functions of many occupations due to his limitations with regards to sitting, standing, walking, bending, twisting and lifting." The physical capacities evaluation form attached limited plaintiff to six hours total of sitting, standing and walking during a work day. (Tr. 356-58).
The last document in the medical portion of the file is a letter written by Dr. Rea from the Ohio State University Comprehensive Spine Center, dated December 14, 2010. That letter post-dates the ALJ's decision and was not considered by him, so the Court will not discuss it further.
Dr. Gaitens, a medical expert, was asked to provide testimony at the administrative hearing. His testimony is found at pages 51-57 of the record.
Dr. Gaitens testified that he is board-certified in physical medicine and rehabilitation. He reviewed the records concerning plaintiff's back condition and concluded that his impairment was not of sufficient severity, based on those records, to satisfythe Listing of Impairments, particularly Section 1.04A.
Dr. Gaitens believed that plaintiff could lift 20 pounds occasionally and ten frequently, but he was limited in his ability to stand. He could only stand five or six hours out of an eight-hour shift, and would need to change position every 45 minutes in order to do that. He could sit for an hour to an hour-and-a-half at a time, with changes of position in between. He would also be limited in the areas of crouching, kneeling, crawling, and climbing, with the latter absolutely precluded. Plaintiff's medication would make working at heights or around moving machinery inadvisable. This assessment was based on the records rather than plaintiff's testimony. Dr. Gaitens saw no evidence of malingering in the medical records.
Mr. Rosenthal, a vocational expert, also testified at the administrative hearing. His testimony begins at page 58. He began by asking plaintiff a number of questions about past jobs, which included not only food sanitation...
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