SHARON L. GLEASON, District Judge.
On or about March 27, 2014, Randy Joe Chance protectively filed an application for Disability Insurance Benefits ("disability benefits") under Title II of the Social Security Act ("the Act"), alleging disability beginning January 19, 2012.
On May 7, 2018, Mr. Chance filed an opening brief.
A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or is based upon legal error.
The Act provides for the payment of disability insurance to individuals who have contributed to the Social Security program and who suffer from a physical or mental disability.
The Act further provides:
The Commissioner has established a five-step process for determining disability within the meaning of the Act.
Before proceeding to step four, a claimant's residual functional capacity ("RFC") is assessed. Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do on a sustained basis despite the limitations from his impairments, including impairments that are not severe.
Based on the foregoing, the ALJ concluded that Mr. Chance was not disabled from January 29, 2014, the alleged onset date, through January 26, 2016, the date of the ALJ's decision.
Mr. Chance was born in 1962; he is currently 56 years old.
The following is in the administrative record:
On December 20, 2011, Mr. Chance visited Michele Prevost, M.D., at Denali Orthopedic Surgery. He reported a right knee injury due to slipping on ice on December 5, 2011. Dr. Prevost noted that the MRI of his knee was "a fairly grainy study." On physical examination, Dr. Prevost observed that Mr. Chance ambulated with a "slight antalgic gait, but [was] full weightbearing" and "had no difficulty climbing on and off the exam table." He had equal range of motion, no rotational instability, and no edema distally, but the right knee had a "1+ to 2 effusion without any capsular warmth, erythema or irritability" and he lacked "the last 10 degrees of flexion due to pain in the popliteal fossa." She recommended more time and rest.
On January 17, 2012, Mr. Chance followed up with Dr. Prevost. He reported continuing right knee pain "when he kneels or puts any type of significant pressure against his knee, especially squatting." On physical examination, Dr. Prevost observed that Mr. Chance still had "a trace effusion without any warmth or erythema," with full extension, but not the hyperextension seen on the left side. She observed that Mr. Chance had no joint line tenderness or patellofemoral compression tenderness. His gait was normal. Dr. Prevost scheduled Mr. Chance for diagnostic arthroscopic surgery.
On January 20, 2012, Mr. Chance visited Dr. Prevost. He reported reinjuring his right knee at work. On physical examination, Dr. Prevost observed trace effusion and tenderness of his medial plica, but his "[l]igaments, anterior drawer, Lachman, posterior drawer, varus and valgus were all stable." She noted good endpoints and no instability, discoloration, or edema. She denied Mr. Chance's request for a handicap parking sticker until after surgery.
On February 16, 2012, Mr. Chance had right knee arthroscopy "with a limited abrasion chondroplasty, medial femoral condyle, and a medial plicectomy/synovectomy." Dr. Prevost anticipated "progressed activities as tolerated but with his occupation estimate 6 weeks probably before he will be able to return to work." She recommended ice and anti-inflammatories "to try to prevent recurrence of that medial plica synovitis."
On March 2, 2012, Mr. Chance followed up with Dr. Prevost. He reported "doing pretty well," but also reported knee swelling "a couple of days ago." On physical examination, Dr. Prevost noted 1+ effusion and five degrees from full extension of the knee.
On March 20, 2012, Mr. Chance followed up with Dr. Prevost. He reported "a bit of soreness, throbbing at night, making it difficult to sleep." Dr. Prevost noted that his quadriceps were deconditioned and he was "starting to get a little bit of a flexion contracture of about 5 degrees." She also noted that his pain was "a little bit out of proportion." She denied his requests for narcotic pain medications, but prescribed an anti-inflammatory; she made a referral for physical therapy.
On April 2, 2012, Mr. Chance established care with First Choice Physical Therapy. He reported right knee pain and leg weakness with poor mobility. A treatment plan of physical therapy three times a week for six weeks was started. Dr. Prevost signed the treatment plan and indicated that Mr. Chance's prognosis was "good."
From April 4 to April 23, 2012, Mr. Chance saw Jeff LePage, P.T., on a number of occasions for physical therapy to address his right knee pain. At the April 23rd session, PT LePage opined that Mr. Chance's right knee pain was "down" and he had "gained motion and some strength." He opined that Mr. Chance demonstrated excellent rehabilitation potential due to the progress that had been made so far, but that he was "not able to work right now." PT LePage recommended continued physical therapy.
On April 24, 2012, Mr. Chance followed up with Dr. Prevost. He reported anterior knee pain, but also noted that physical therapy had been "helping quite a bit." Dr. Prevost noted that Mr. Chance was "doing fairly well except for the onset of a patellofemoral syndrome."
From April 25 to May 25, 2012, Mr. Chance attended additional physical therapy sessions with PT LePage.
On May 25, 2012, Mr. Chance followed up with Dr. Prevost. He reported improvement with physical therapy "getting his quadriceps muscles to return, which is decreasing the anterior knee pain," but that he was having pes anserine pain. Dr. Prevost noted "slower than average" progress, but that Mr. Chance "finally seem[ed] to be making it."
On May 30, 2012, Mr. Chance saw PT LePage for physical therapy and stated he "underst[oo]d that I need to get ready for work." But at his next visit on June 7, 2012, Mr. Chance indicated he was "confused about what I am supposed to be doing." After multiple cancellations and no-shows, Mr. Chance was discharged as a physical therapy patient at First Choice Physical Therapy on June 22, 2012.
On June 14, 2012, Mr. Chance established care with Michael Wellsandt, P.T., at Excel Physical Therapy. He reported right knee pain and weakness and "difficulty straightening the knee." PT Wellsandt observed a mild to moderate antalgic gait with "decreased stance time" on the right and decreased knee flexion.
On June 18 and June 22, 2012, Mr. Chance saw PT Wellsandt for physical therapy for his right knee.
On June 26, 2012, Mr. Chance followed up with Dr. Prevost. He reported increased anterior right knee pain with the increased physical therapy. On physical examination, Dr. Prevost observed that Mr. Chance was able to "get full extension" of his right knee and had no effusion. Dr. Prevost noted Mr. Chance's post-operative recovery was "a much longer recovery than typical for this surgery" and that she suspected "some symptom magnification [was] present."
From June 25 to July 26, 2012, Mr. Chance continued to attend physical therapy sessions for his right knee at Excel Physical Therapy.
On July 31, 2012, Mr. Chance followed up with Dr. Prevost. On physical examination, Dr. Prevost observed an active full straight leg raise equal to the other leg, but a "palpable deficit as far as the girth, bulk, and just overall quadriceps muscles." She noted normal patellar tracking and normal limb alignment. She stated she did "not have a good explanation for his long recovery," and noted "active-duty military, parachute-jumpers, and athletes are back to full duty at this point." Dr. Prevost opined that Mr. Chance "should be ready to go back to work," but she had to "honor his verbal report that he does not feel he can do so at this time." She indicated that "[f]rom a medical standpoint, there really is no further treatment after this final cycle of [physical] therapy."
From August 1 to September 6, 2012, Mr. Chance went to Excel Physical Therapy for his right knee pain.
On September 10, 2012, Mr. Chance saw Shawn Johnston, M.D., at Alaska Spine Institute for a permanent partial impairment rating. Dr. Johnston opined that Mr. Chance had a 2% lower extremity impairment based on his right knee pain and mild loss of range of motion, which converted to a "1% whole person impairment for the plica and injury to the medial femoral condyle."
On September 20, 2012, Mr. Chance saw Robert Hall, M.D., at Orthopedic Physicians Anchorage ("OPA"), for a second opinion. On physical examination, Dr. Hall observed that Mr. Chance walked with an antalgic gait, but his right knee had healed well with no "significant effusion." The right knee was stable to stress testing with some mild tenderness. X-rays showed no degenerative change and no joint space narrowing in the right knee with the patella "well centered."
On September 22, 2012, Mr. Chance was examined by Douglas Bald, M.D., at the request of his employer's worker's compensation insurer "for the purpose of trying to determine whether any further treatment of any kind is reasonable or appropriate or necessary directed towards Mr. Chance's right knee condition." Mr. Chance reported pain and "grinding" in his right knee, "particularly associated with any kind of stair climbing, either going up or down, or with prolonged weightbearing." Dr. Bald diagnosed Mr. Chance with right knee sprain/strain and persistent patellofemoral tracking dysfunction. He opined that Mr. Chance was "not yet medically stable or stationary," as "his right knee condition could be improved significantly with further treatment," including more physical therapy, "perhaps in conjunction with a muscle stimulator." Dr. Bald opined that it was premature to determine whether Mr. Chance had any permanent physical restrictions, and that he was capable at that time of performing light/medium work limited to occasional lifting or carrying up to 35 pounds with no squatting, kneeling, or ladder climbing.
On October 1, 2012, Mr. Chance saw Dr. Hall to discuss the September 2012 MRI. He reported unchanged anterior knee pain and some posteromedial pain. Dr. Hall reviewed Mr. Chance's MRI results and diagnosed him with right knee peri-meniscal cyst and possible patella articular cartilage damage, but no meniscal tear.
On October 9, 2012, on Dr. Hall's recommendation, Mr. Chance had an ultrasound-guided medial cyst aspiration on his right knee. Although "[t]echnically successful," only minimal fluid was aspirated.
On October 12, 2012, Mr. Chance followed up with Dr. Hall. He reported that after the medial cyst aspiration, "the posteromedial pain went away" but the anterior knee pain persisted. Dr. Hall opined that Mr. Chance could "live with [the knee] the way it is or consider a second surgery for an arthroscopy evaluation in the medial meniscus." Mr. Chance indicated he wanted to proceed with the surgery.
On October 30, 2012, Mr. Chance underwent "right knee arthroscopic limited chondroplasty of the medial facet of the patella and the medial femoral condyle" and "[o]pen removal of posterior medial cyst, right knee." No tearing of the meniscus was noted.
On November 1, 2012, Mr. Chance had deep vein thrombosis testing on his right leg based on a reported history of "[a]cute right leg pain and swelling following recent knee surgery." The examination was normal with "no evidence for deep vein thrombosis."
On November 7, 2012, Mr. Chance saw Raymond Farrell, P.A., at OPA. On physical examination he had 90 degrees of motion in the right knee and no evidence of erythema or drainage.
From November 19, 2012 to November 29, 2012, Mr. Chance went to physical therapy at Health Quest Therapy for his right knee.
On November 30, 2012, Mr. Chance visited Dr. Hall. He reported some significant pain, although improved since directly after the recent surgery. Dr. Hall noted "some decreased sensation" around Mr. Chance's surgical incision, but also noted no significant effusion.
From December 4, 2012 to December 27, 2012, Mr. Chance continued physical therapy for his right knee.
On December 31, 2012, Mr. Chance followed up at OPA. He reported doing well and improving until aggravating his knee at physical therapy. On physical examination, positive patella crepitation, mild medial jointline tenderness, 115 degrees range of motion, and an active straight leg raise were observed.
Through January 2013, Mr. Chance went to physical therapy for his knee at Health Quest Therapy.
On February 4, 2013, Mr. Chance followed up with Dr. Hall. He reported that he "feels he is close to being ready to go back to work." Dr. Hall noted that Mr. Chance's range of motion was 0 to 130 degrees and the medial jointline and posterior aspect of the knee were nontender. Dr. Hall stated, "hopefully [in another four to six weeks], we can return him to work."
From February 5 to March 5, 2013, Mr. Chance visited Health Quest on multiple occasions for physical therapy on his right knee.
On March 7, 2013, Mr. Chance followed up with Dr. Hall. Mr. Chance reported improvement with physical therapy, but that he was "still unable to squat or kneel." He also reported that he was "not taking any pain medications of any kind anymore" and that he had "no more flares of his symptoms." On physical examination, Dr. Hall noted that Mr. Chance had "some numbness in the anterolateral shin," but that he was "neurovascularly intact around that incision."
On March 8 and March 21, 2013, Mr. Chance went to physical therapy for his right knee.
On March 26, 2013, Mr. Chance went to the emergency department at Mat-Su Regional Medical Center. He had been involved in a three-car motor vehicle accident that the ER notes describe as "relatively low-speed" impact with no airbag deployment; Mr. Chance was wearing his seat belt and was "complaining of low back pain, lower leg pain, and elbow pain," but was ambulatory at the scene. X-rays of Mr. Chance's thoracic spine, chest, and right elbow and CT scan of the chest, abdomen, and pelvis did not show any acute fracture, dislocation, or instability. X-rays did show "[c]hronic mild spondylosis and chronic mild T8 and T9 foreshortening and anterior wedging" and "[m]ild chronic degenerative spurring" in the right elbow. Mr. Chance was prescribed Norco for pain.
From March 28, 2013 to April 4, 2013, Mr. Chance went to physical therapy for his right knee. He reported being stiff and sore from the car accident on March 26, 2013, but that his knee was not injured in the accident.
On April 3, 2013, Mr. Chance saw Dr. Parker. He reported "some pain" in the right elbow "with certain movements" and neck and lower back pain, but also reported that "[a]ll [were] getting better." On physical examination, Dr. Parker observed tenderness to palpation in the neck, left trapezius, right elbow, and lumbar back, but no tenderness over the vertebrae and no deformity. Dr. Parker noted "muscle and tendon strains only" and recommended "more extensive [physical therapy] treatment if needed."
On April 8, 2013, Mr. Chance followed up with Dr. Hall. He reported taking Motrin 800 mg three times daily and that the numbness in his leg had not changed. Dr. Hall observed "decreased sensation from the jointline distally on the anterolateral aspect of the knee down to about 6 cm above the ankle."
On April 11 and April 16, 2013, Mr. Chance went to physical therapy for his right knee.
On April 17, 2013, at the recommendation of Dr. Hall, Mr. Chance had a nerve conduction study and EMG by Dr. Gevaert at Alaska Spine Institute. Both were normal; they showed no evidence of any spinal radiculopathy or specific damages to the peroneal or tibial nerve.
From April 18 to May 9, 2013, Mr. Chance continued to attend physical therapy for his right knee at Health Quest Therapy.
On May 10, 2013, Mr. Chance followed up with Dr. Hall. He reported pain after "work hardening" exercises in physical therapy. Mr. Chance also reported that he did not fill his prescription of Medrol Dosepak "as he was worried about some of the side effects of prednisone." Dr. Hall observed no significant effusion and "very minimally tender" to palpation posteriorly along the incision line. X-rays of the right knee taken at the visit showed "no evidence of degenerative change of the tibiofemoral or patellofemoral compartments."
On May 18, 2013, Mr. Chance saw Dr. Bald for a second independent medical examination of his right knee. Dr. Bald observed a normal gait, no ligamentous instability, negative Lachman and drawer tests with normal strength in both lower extremities, but "some diminished sensation along the medial aspect of the tibia, extending to approximately 6 cm above the ankle." Dr. Bald opined that Mr. Chance had effectively reached medical stability regarding his right knee injury. Dr. Bald also opined that Mr. Chance would "not have the physical capabilities in the future" of returning to his previous job as a mechanical specialist. However, the doctor opined that Mr. Chance was capable of full-time employment at a medium level work with restrictions related to squatting, kneeling, crawling, and ladder climbing.
On May 31, 2013, Mr. Chance followed up by telephone with Dr. Hall. Dr. Hall recommended job retraining or Synvisc injections.
On June 28, 2013, Mr. Chance visited Dr. Parker at Coho Family Medicine. Mr. Chance reported bleeding issues on his neck and a sore elbow. On physical examination, Mr. Chance's lumbar back was tender over the left paraspinal muscles, but with no deformity and no vertebral tenderness. Dr. Parker observed a "nodular lesion with central ulceration" on the left side of Mr. Chance's neck. At the visit, Dr. Parker diagnosed Mr. Chance with medial epicondylitis in the right elbow and injected the area to reduce pain.
On August 29, 2013, Mr. Chance followed up with Dr. Parker to excise a spot on his neck.
On November 20, 2013, Mr. Chance visited Dr. Brudenell for a worker's compensation referral. He reported right elbow pain. On physical examination, Dr. Brudenell observed full and normal range of motion in the right elbow with "exquisite tenderness" and decreased wrist and grip power. Dr. Brudenell recommended physical therapy and an MRI of the right elbow.
On November 26, 2013, Mr. Chance had an MRI of the right elbow. The MRI showed "moderately severe tendinopathy of the common extensor tendon," a "partial-thickness tear of the proximal-most fibers," and "subtle high signal in the distal triceps tendon." There was no evidence of fracture or dislocation and the common flexor tendon was normal.
On December 3, 2013, Mr. Chance initiated physical therapy at Wasilla Physical Therapy for right elbow pain.
On December 6, 2013, Mr. Chance followed up with Dr. Brudenell. Dr. Brudenell diagnosed Mr. Chance with "[e]ntrenched lateral humeral epicondylar tendonitis of the elbow." He recommended physical therapy and indicated that Mr. Chance was "totally disabled from his work activities" with no projected return to work date specified and "intensive therapy in progress."
From December 10 to December 30, 2013, Mr. Chance had multiple visits with Alice Huttunen, P.T., at Wasilla Physical Therapy for his right elbow.
On January 6, 2014, Mr. Chance saw Alice Huttunen, P.T. at Wasilla Physical Therapy, for his right elbow.
On January 10, 2014, Mr. Chance followed up with Dr. Brudenell. He reported "substantial recovery in terms of his elbow function" and he believed he "may be ready to return to work about January 13, 2014 in his job in a HVAC position." On physical examination, Dr. Brudenell observed some elbow tenderness, but noted it was "a fraction of that which we have observed in late 2013." Mr. Chance was not taking any medications at the time.
It appears Mr. Chance returned to work for approximately two weeks on or about January 15, 2014.
The following is a summary of the medical records after January 29, 2014, the amended alleged onset date:
On February 5, 2014, Mr. Chance saw Alice Huttunen, PT, at Wasilla Physical Therapy for "mechanical low back pain" and elbow pain after he returned to work. He reported that his back and elbow "flared" when he returned to work. PT Huttunen opined that Mr. Chance had "signs of mechanical low back pain typical of facet or disc pathology," but "[h]is elbow is slowly resolving."
On February 7, 2014, Mr. Chance visited Dr. Brudenell; his chief complaint was lumbar and left hip pain. Mr. Chance reported "some low-grade knee symptoms," but his "right elbow symptoms have almost completely vanished." On physical examination, Mr. Chance's lumbar spine demonstrated "substantial tenderness in the midline relaxed supine at the lumbosacral junction" and "limited range of motion in lumbar flexion and extension." Dr. Brudenell obtained reviewed x-rays of Mr. Chance's lumbar spine. He noted the films demonstrated "degenerative changes at multiple mid lumbar levels including L2-3, L3-4 and to a lesser extent L1-2," "reasonably good preservation of intervertebral disc spaces at L4-5 and particularly L5-S1," and no "significant foraminal encroachment by any osseous structures." Dr. Brudenell recommended a lumbar MRI scan and left L4-5 epidural steroid injection. He noted that Mr. Chance had returned to work full time on January 15, 2014 and recommended no change in that work status.
On February 11, 2014, Mr. Chance had an MRI of his lumbar spine. The MRI showed "[s]ignificant left-sided neural foraminal encroachment L3-4, L4-5, and L5-S1," including "moderate to severe left neural foraminal encroachment at L4-5 from disc disease in the foraminal area and the apparent impingement of the nerve in the left foraminal area at L5-S1 due to potential pars defect," and "[l]esser prominent disc bulges central paracentral L2-3, L3-4 without compromise central canal."
On February 18, 2014, Mr. Chance had a L4-L5 transforaminal epidural steroid injection.
On February 28, 2014, Mr. Chance again visited Dr. Brudenell. He reported that the epidural injection afforded him immediate, dramatic pain relief, but "then over several days the pain in his left hip began to recur and he has begun to have quite a bit of spasm and is losing sleep." On physical examination of the lumbar spine, Dr. Brudenell observed "significant limitation of motion, particularly in extension and right and left lateral bending." Dr. Brudenell noted the recent MRI results; he prescribed Flexeril 10 mg and noted that Mr. Chance was also taking ibruprofen 200 mg.
On March 7, 2014, Mr. Chance was discharged from physical therapy at Wasilla Physical Therapy because he had not requested any further treatments after February 5, 2014.
On March 18 and April 15, 2014, Mr. Chance visited Wasilla Physical Therapy. He reported that "[e]ven the lightest exercise would make his back pain worse the next day following treatment." The therapist noted that "no progress is being made" and "therapy is only helping to manage his pain."
On April 17, 2014, Mr. Chance visited DNP Atkins for follow up. He reported that physical therapy was not easing his pain, but he felt "a lot stronger." He also reported that Meloxicam was not helping with pain. He reported he was unable to work because the pain was so severe. Mr. Chance's straight leg raising was negative and gait and station were "functional." DNP Atkins opined that Mr. Chance was "failing more conservative care." She stopped Meloxicam because of elevated blood pressure and prescribed gabapentin 300 mg and increased the Norco to 7.5-325 mg. She recommended following up with a spine surgeon.
On May 6, 2014, Mr. Chance visited Steven Parker, M.D., at Coho Family Medicine. Dr. Parker treated Mr. Chance for actinic keratosis, testicular dysfunction, and elevated blood pressure without diagnosis of hypertension. There is no record of any complaint of back pain.
On May 20, 2014, Mr. Chance had a CT scan of the lumbar spine. The CT scan showed "[b]ilateral pars defects" at L5, "fairly severe neural foraminal stenosis on the left at L5-S1," and degenerative changes throughout the lumbar spine, "most pronounced at L2-L3 and L3-L4."
On May 22, 2014, Mr. Chance followed up with Dr. Eule. Dr. Eule noted that the CT scan showed "obvious bilateral pars defects" and recommended fusion surgery at the L5-S1 level and likely decompression and maybe foraminotomy of the L4-5 level. Dr. Eule also noted that due to Mr. Chance's smoking habit, fusion surgery was "4-5 times more likely . . . not to heal smoking as little as 1-2 cigarettes a day, so he definitely needs to quit."
On June 27, 2014, Dr. Eule completed the physician portion of Mr. Chance's application for disabled parking. He indicated that Mr. Chance was "severely limited in [his] ability to walk due to an arthritic, neurological, or orthopedic condition." He indicated the disability was temporary, extending from June to October 2014.
On July 1, 2014, Mr. Chance visited Marius Maxwell, M.D., at Arctic Spine. His chief complaint was "severe lower back pain and left leg pain following a motor vehicle accident on March 26, 2013." Dr. Maxwell observed normal motor bulk and tone, decreased range of motion in the lumbar spine with paraspinal muscle spasm, and a normal gait and station with good heel, toe, and tandem walk. Dr. Maxwell opined that if Mr. Chance could "live with the pain with further pain management, he should do so." He also noted that "if he needs surgical relief I have recommended an L5-S1 [posterior lumbar interbody fusion]" with a L4-5 foraminotomy or possibly an additional posterior lumbar interbody fusion ("PLIF").
On July 30, 2014, William Backlund, M.D., the state agency medical reviewer, reviewed the medical records and assessed Mr. Chance's physical RFC. He opined that Mr. Chance could perform light duty work, but he was limited to lifting and carrying 20 pounds occasionally and 10 pounds frequently, and he could sit, stand and/or walk for about six hours in an eight-hour workday. Dr. Backlund also opined that Mr. Chance could climb ramps and stairs frequently, ladders, ropes, and scaffolds occasionally, and could kneel, stoop, crouch, and crawl occasionally. He noted that Mr. Chance should avoid concentrated exposure to hazards. Dr. Backlund opined that a more restrictive standing/walking limitation was not warranted "due to normal gait on several exams" that he listed. He noted that Mr. Chance's right elbow pain resolved within twelve months and was not considered. The RFC limitations were based on Mr. Chance's L5 spine condition and degenerative joint disease.
On October 7, 2014, Mr. Chance renewed his application for disabled parking. Dr. Eule completed the physician portion of the application for a temporary period from November 2014 to May 2015 due to being severely limited in his ability to walk.
On October 23, 2014, Mr. Chance visited DNP Atkins. He reported "increasing pain about his left lower back and left leg." He also reported that his left leg was "getting weak and the knee [was] buckling on him at times." Mr. Chance also noted that "he knows he needs surgery, but cannot consider it until next year because he is working on getting his finances squared away to cover it." On physical examination, DNP Atkins observed very mild weakness with left knee extension and flexion, a positive straight leg raising on the left, lumbar range of motion was not tolerated well in any direction, and gait and station were functional. She prescribed gabapentin and Percocet.
On October 28, 2014, Mr. Chance saw Dr. Parker. He reported his chief complaint as "back surgery." Dr. Parker noted normal deep tendon reflexes in upper and lower extremities, no edema, 5/5 motor "proximally and distally of bilateral lower extremities on [the right,]" but 4/5 left plantar dorsiflexion strength. His gait was within normal limits.
On October 30, 2014, Dr. Eule completed a medical statement regarding physical abilities and limitations. He opined that Mr. Chance could work up to one hour per day; stand or sit up to 15 minutes at a time for a total of 60 minutes in a work day; could lift 10 pounds occasionally and five pounds frequently; could never bend, stoop, or work around dangerous equipment; and occasionally balance. Dr. Eule indicated that Mr. Chance had occasional fine and frequent gross manipulation of the right hand; frequent fine and gross manipulation of the left hand; could occasionally raise his left arm over shoulder level; frequently raise his right arm over shoulder level; occasionally operate a motor vehicle; and frequently tolerate heat and cold, dust, smoke, or fumes, and noise exposure. Dr. Eule opined that Mr. Chance would need to frequently elevate his legs during an eight-hour work day and had limited distance vision. He assessed the severity of Mr. Chance's pain as moderate.
On January 19, 2015, Mr. Chance visited Dr. Parker. He reported no new swelling or pain and that he continued smoking. On physical examination, Dr. Parker observed normal deep tendon reflexes in upper and lower extremities and no edema. He diagnosed Mr. Chance with spinal stenosis of the lumbar region with neurogenic claudication and high blood pressure.
On February 26, 2015, Mr. Chance saw Susan Klimow, M.D., for a consultative examination. He reported "constant discomfort in the low back radiating to the left leg" and right elbow pain. He also reported that he required assistance with activities of daily living, including getting his socks on. On physical examination, Dr. Klimow observed no edema or cyanosis, limited left upper extremity range of motion "for abduction of the left shoulder when compared to the right with no evidence of impingement." She also observed lumbosacral spine decreased range of motion in all planes and positive left straight leg raising. Dr. Klimow observed bilateral upper extremities intact to light touch and right lower extremity intact to light touch; right and left upper extremity grip 5/5; bilateral wrist flexion 5/5; right wrist extension 4/5; left wrist extension 5/5; bilateral elbow extension and flexion 5/5; and 5/5 lower extremities motor strength throughout. Dr. Klimow opined that Mr. Chance's "chronic low back pain with radiculopathy to the left lower extremity" limited his ability to "do prolonged sitting, standing, moving about, or traveling." She opined that his "low back issue with decreased low back range of motion" limited his ability to lift and carry. She also indicated that due to Mr. Chance's left shoulder discomfort, "he should limit repetitive work above shoulder level."
On March 2, 2015, Mr. Chance visited Andrew Jaconette, M.D., at Comprehensive Pain Management. On physical examination, Dr. Jaconette observed a mildly antalgic gait favoring the left lower extremity; Mr. Chance appeared stable and ambulated without an assistive device. The doctor observed mildly painful range of motion with left shoulder abduction; deep tendon reflexes 1/2 on the right shoulder and 2/2 on the left shoulder; deep tendon reflexes 1/2 bilaterally on the knees, otherwise absent; a positive single leg raising test on the left; positive facet loading, left more than right; motor 4/5 left extensor hallucis longus; and diffuse paraspinal tenderness bilaterally, but no swelling or effusion. Dr. Jaconette diagnosed Mr. Chance with "left lower extremity radicular complaints secondary to L5 pars fractures with anterior listhesis resulting in moderate-severe neural foraminal stenosis at L5-S1 and mild to moderate stenosis at L4-5"; multilevel degenerative disc disease with probable discogenic pain; probable facetogenic pain; recurrent lumbar spasms; and sleep disorder, not otherwise specified. He noted that Mr. Chance's "functional abilities continue to decline despite conservative care." Dr. Jaconette refilled Mr. Chance's Percocet prescription and prescribed Lyrica and Zanaflex.
On March 30, 2015, Mr. Chance visited Dr. Jaconette for follow up and medication refills. He reported improvement with Lyrica and Zanaflex and better sleep. Dr. Jaconette observed a mildly antalgic gait favoring the left, mildly painful range of motion with left shoulder abduction, and left shoulder impingement signs. He observed increased lordosis, no step-off deformity, limited and painful range of motion in the back in all planes, bilateral facet loading, and diffuse paraspinal tenderness bilaterally. Dr. Jaconette noted 4/5 motor strength in Mr. Chance's left leg; decreased sensation to the left L5 dermatomal distribution involving the foot; deep tendon reflexes 1/2 bilaterally at the knee, otherwise absent; and an equivocal straight leg raising test. Dr. Jaconette refilled Mr. Chance's prescriptions.
On April 2 and 3, 2015, Mr. Chance saw occupational therapist Liz Dowler, Ph.D., for a physical capacities evaluation. OT Dowler summarized many of Mr. Chance's medical records. On physical assessment, Mr. Chance showed "limited motion in his lumbar spine most significantly in flexion, lateral bending and rotation to the left" with 5/5 motor strength in the lower extremities and poor grip and pinch strength in the right arm due to tendinopathy. OT Dowler limited Mr. Chance to sedentary work, but she found his pace to be "not within functional productivity standards." Thus, she concluded, "[e]ssentially he is unable to work." OT Dowler opined that Mr. Chance was unable to crouch or bend, crawl, twist, reach overhead or to the floor, and could only kneel on one knee. She opined that his medications prevented him from driving safely.
On April 20, 2015, Raymond North answered vocational interrogatories as a vocational expert. He indicated that "the physical demands of [Mr. Chance's past] work exceed[ed] the light RFC" in the interrogatory's hypothetical. But he opined Mr. Chance could perform certain light duty unskilled jobs that exist in the national economy, such as cashier II, storage rental clerk, and order caller.
On May 26, 2015, Mr. Chance followed up with Dr. Jaconette. He reported "doing poorly" and that he had not been taking Lyrica due to "insurance issues and he could not afford the medication on his own." On physical examination, Dr. Jaconette's observations were essentially the same as at previous visits. Dr. Jaconette noted Mr. Chance was "mildly antalgic" and used a cane. He refilled Mr. Chance's Percocet prescription, increased the gabapentin dosage, and refilled the Zanaflex prescription. Dr. Jaconette noted that his office had not received any paperwork from Mr. Chance's insurer regarding the denial of Lyrica.
On July 21, 2015, Mr. Chance saw Dr. Jaconette for medication refills. He reported "no real change"; his low back pain continued "to be under reasonable control," but he still had to limit his activities. He also reported that his left shoulder pain had improved. Dr. Jaconette again observed a mildly antalgic gait favoring the left and Mr. Chance's use of a cane. He observed a painful grip on the right, but Mr. Chance's range of motion in both arms was "grossly intact" with normal sensation. Dr. Jaconette noted a limited extension/rotation range of motion in the back, facet loading on the left, and diffuse paraspinal tenderness on the left. He also noted 4/5 motor strength in Mr. Chance's left leg and decreased sensation to the left L5 dermatomal distribution involving the foot. Dr. Jaconette refilled Mr. Chance's Percocet, gabapentin, and Zanaflex prescriptions. He recommended physical therapy and pool therapy to improve activity tolerance and aid in weight loss.
On September 15, 2015, Mr. Chance followed up with Dr. Jaconette. He reported "everything is about the same." He also reported that his medications provided him with "moderate relief." Dr. Jaconette again noted a mildly antalgic gait favoring the left and that Mr. Chance used a cane. The results of a physical examination were substantially the same as prior visits. Dr. Jaconette refilled Mr. Chance's prescriptions. He again recommended physical therapy and pool therapy to improve activity tolerance and aid in weight loss. He also recommended that Mr. Chance consult with his primary care physician regarding hypertension.
On November 3, 2015, Mr. Chance visited Dr. Jaconette. He reported that his low back pain had worsened in the past month, possibly due to increased driving to Anchorage. On physical examination, Dr. Jaconette's observations were essentially the same as previous visits. Dr. Jaconette recommended L5-S1 facet and pars defect injections, in addition to renewing his physical therapy and pool therapy recommendations.
On November 17, 2015, Mr. Chance received bilateral lumbar facet injections at L5-S1 from Dr. Jaconette.
On November 24, 2015, Mr. Chance visited Dr. Jaconette. He reported that his low back and left-sided upper buttock pain "was reduced by 50%" for the first 24-48 hours after the facet injections. He reported that his pain increased on days three and four after the injections, but resolved after five days and he experienced a 20% improvement. Dr. Jaconette again noted a mildly antalgic gait favoring the left with use of a cane. The doctor's objective observations were similar to prior visits; prescriptions were refilled. Dr. Jaconette again recommended pool therapy as well as lumbar medial branch blocks.
In a letter dated May 15, 2016, Dr. Eule wrote to Mr. Chance's attorney that "Mr. Chance has a treatable problem in his back that [] with surgery, most people would recover and be able to return to gainful employment. It would not be incapacitating and needing disability. Therefore, I do not support his pursu[it] of disability."
On January 23, 2015, Mr. Chance testified before ALJ Hebda, with attorney representation. He testified that the lower left side of his back was in constant pain and the pain radiated into his left leg and foot. He indicated that his left toes were numb and that his right toes were "starting to numb a little bit." He testified that his right knee was "beginning to get irritated" because he constantly had to shift his weight to the right and his right elbow was irritated because he had to "use the cane to take the weight off." He indicated that the cane was prescribed originally by Dr. Hall after his second right knee surgery. Mr. Chance testified that he briefly returned to work in January 2014 as a HVAC coordinator, but stopped because he had "severe pain" in his lower left back caused by "walking and being on my feet" and his "elbow was getting more irritated." He indicated that walking and "just being on my feet" exacerbated his back injury. He testified that two physicians, Drs. Eule and Maxwell, indicated that he needed back surgery. Mr. Chance testified that before he could schedule the surgery, he needed to "completely be nicotine free for 20 days." He also indicated that he needed to come up with a $10,000 copayment for his insurance company. He reported that he smoked four to five cigarettes a day at the time of the hearing. His attorney indicated that Mr. Chance's knee was "not really the issue any more." Mr. Chance testified that he would shower and dress, sit with a heating pad on a recliner chair, and alternate sitting, standing, and stretching most of the day inside the house. He testified that he watched some TV and did research on his iPad. He also testified that he visited with his daughter and grandchildren, but he could not pick the children up. Mr. Chance indicated that his wife usually drove because he couldn't drive "in one stationary position" and his medication made him "very dizzy [and] confused." Mr. Chance testified that his spouse also made dinner, but he could make sandwiches. He indicated that he could stand about ten minutes before changing positions. ALJ Hebda stopped the hearing to inform Mr. Chance's attorney that he had "serious problems" with the disability reports prepared by Dr. Eule and Dr. Parker, because they were inconsistent with Mr. Chance's testimony and the medical evidence.
On December 22, 2015, Mr. Chance appeared with counsel at a supplemental hearing at which the vocational expert, Raymond North, testified. The ALJ noted that the supplemental hearing was "at the request of [Mr. Chance]'s representative to review and question the responses to vocational interrogatories." Mr. Chance's attorney asked VE North if Mr. Chance had "any transferrable skills from [his] work history to a sedentary job?" VE North replied, "No." VE North also testified that Mr. Chance's past work required occasional reaching; it also required climbing ladders, crawling, and kneeling "more than never." ALJ Hebda did not pose any additional hypotheticals and did not question VE North at the hearing.
Mr. Chance completed a function report on June 17, 2014. He indicated that due to his "permanent physical impairments" of his "knee, back and elbow," he was unable to bend, lift, walk any distance, or "climb, stoop, kneel, crouch, crawl, or grasp large objects which is required for my job." He added that he was unable to sit or stand without severe pain "due to the severe neural foraminal stenosis." He reported that the medications he took for pain caused dizziness and loss of concentration. He indicated that his wife did all the housework, yardwork, shopping, bill paying, and "animal feeding." He reported that he could prepare sandwiches and microwave food and do ironing. He reported needing assistance sometimes in putting on his pants and socks. He reported he could walk 40 feet before needing to rest.
Mr. Chance is represented by counsel. In his opening brief, he asserts that the ALJ: (1) "failed to assess medical evidence—including medical opinion evidence—as required by 20 C.F.R. § 1527"; (2) "failed to understand the regulation relating to `objective medical evidence,' and failed to apply correctly the regulatory provisions relating to acceptable evidence"; and (3) "committed reversible error by assigning `little weight' to occupational therapist Dr. Liz Dowler, Ph.D., by discounting her evaluation and her opinion on the basis that she is not an acceptable medical source."
Mr. Chance alleges that ALJ Hebda failed to comply with the applicable regulations in assessing the medical evidence. Specifically, he alleges the ALJ erred: (1) by assigning "little weight" to the medical source opinions of treating physicians Drs. Parker and Eule and "no weight" to treating physician Dr. Brudenell; (2) by assigning "little weight" to occupational therapist Liz Dowler, Ph.D.; and (3) by assigning "great weight" to the state agency physician Dr. Backlund.
"Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]."
In the Ninth Circuit, "[t]o reject the uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence."
Factors relevant to evaluating any medical opinion include: (1) the examining or treatment relationship; (2) the consistency of the medical opinion with the record as a whole; (3) the physician's area of specialization; (4) the supportability of the physician's opinion through relevant evidence; and (5) other relevant factors, such as the physician's degree of familiarity with the SSA's disability process and with other information in the record.
The SSA also permits a claimant to provide evidence from non-physician sources as to the severity of an impairment and how it affects a claimant's ability to work, including evidence from a nurse practitioner, physician assistant (PA), chiropractor, or therapist, including a physical therapist.
Dr. Parker was Mr. Chance's primary care physician and treated Mr. Chance before and after the amended onset date of January 29, 2014.
The ALJ did not accept Dr. Parker's opinion that Mr. Chance was limited to standing or sitting for 15 minutes at a time for one hour total in an eight-hour work day; was limited to lifting up to 10 pounds frequently; could never bend, stoop; occasionally balance or raise his left arm over shoulder level; could frequently tolerate heat and cold, dust, smoke, or fumes, and noise exposure; and would need to occasionally elevate his legs during an eight-hour work day.
The ALJ provided the following specific reasons for assigning little weight to Dr. Parker's opinion: (1) he "did not provide an explanation of what objective evidence he based his opinion upon"; (2) his treatment notes "reveal[] no significant examination findings during the period beginning January 29, 2014 that would explain limitations as extreme as those provided by Dr. Parker"; (3) the "medical evidence of record does not include evidence of a respiratory or other impairment that would reasonably require limitations on [Mr. Chance]'s exposure to heat, dust, smoke, or fumes" or impaired vision or hearing; and (4) "neither Dr. Parker's treatment notes nor [Mr. Chance]'s treatment records in general reveal persistent lower extremity swelling or other condition that would require elevation of the legs."
An ALJ "may discredit treating physicians' opinions that are conclusory, brief an unsupported by the record as a whole or by objective medical findings."
Additionally, Mr. Chance's daily activities did not support Dr. Parker's work limitations. An ALJ may discount a physician's opinion when the treatment records and evidence of daily living activities contradict the opinion.
Dr. Backlund's contradicting opinion further supports ALJ Hebda's rejection of Dr. Parker's opinions.
For the foregoing reasons, the Court finds that the ALJ provided specific and legitimate reasons supported by substantial evidence for rejecting Dr. Parker's opinion regarding Mr. Chance's work limitations.
Dr. Eule was Mr. Chance's treating physician from approximately May 20, 2014 through October 2014.
In October 2014, Dr. Eule opined that Mr. Chance could work up to one hour per day; stand or sit up to 15 minutes at a time for a total of 60 minutes in a work day; could lift 10 pounds occasionally; five pounds frequently; never bend, stoop, or work around dangerous equipment; and occasionally balance. Dr. Eule indicated that Mr. Chance had occasional fine and frequent gross manipulation of the right hand; frequent fine and gross manipulation of the left hand; could occasionally raise his left arm over shoulder level; frequently raise his right arm over shoulder level; occasionally operate a motor vehicle; and frequently tolerate heat and cold, dust, smoke, or fumes, and noise exposure. Dr. Eule opined that Mr. Chance would need to frequently elevate his legs during an eight-hour work day and had limited distance vision.
ALJ Hebda found Dr. Eule's "opinion regarding [Mr. Chance]'s limitations to be extreme and unsupported" and gave the opinion "little weight." The ALJ specifically noted that Dr. Eule's treatment notes "do not include findings associated with the upper extremities, [Mr. Chance]'s vision or hearing, or [Mr. Chance]'s respiratory functioning" and neither Dr. Eule's treatment notes nor the treatment records in general "reveal persistent lower extremity swelling or another condition that would require elevation of the legs."
The ALJ's specific reasons for rejecting Dr. Eule's opinions regarding Mr. Chance's work restrictions are supported by substantial evidence in the record. For example, Dr. Eule's treatment notes on May 2014 showed that Mr. Chance was "visibly uncomfortable on the table, shifting positions constantly" and could not "bend forward more than 10 degrees," but "really nontender to palpation over his lower spine" and had "good strength throughout the bilateral lower extremities" and "good range of motion of his hips." Dr. Eule observed "no leg swelling, edema, or ulcerations" and that Mr. Chance was "able to get up and ambulate around and rock up on his toes and back on his heels." After a CT scan showed bilateral pars defects, Dr. Eule recommended fusion surgery, but noted that Mr. Chance had to quit smoking first. Dr. Eule's treatment notes do not address Mr. Chance's upper extremities, vision, hearing, or respiratory function.
The ALJ also gave little weight to Dr. Eule's opinions in June and October 2014 that Mr. Chance was severely limited in his ability walk because the opinions did not have "an explanation of supporting evidence" or a "description of the degree of this limitation."
Based on the foregoing, the Court finds that the ALJ provided specific and legitimate reasons, supported by substantial evidence, for rejecting Dr. Eule's opinion regarding Mr. Chance's work restrictions and walking limitation.
Dr. Brudenell was Mr. Chance's treating physician from approximately November 2013 through February 2014. In January 2014, he opined that Mr. Chance could return to work "as long as duties are available without lifting more than 5 pounds with [the] [r]ight arm."
The ALJ found Dr. Brudenell's statements "unsupported" and gave them no weight. He provided the following reasons: (1) Dr. Brudenell "did not include a description of what evidence he relied upon in rendering his opinions"; (2) while Dr. Brudenell's "treatment notes reveal examination findings associated with [Mr. Chance]'s lumbar spine and right elbow condition, these findings do not suggest disabling limitations"; and (3) Mr. Chance's "treatment records do not include persistent right elbow pain or related symptoms during the period beginning January 29, 2014."
Incongruity between a medical source's opinion and that source's treatment records is a specific and legitimate reason for rejecting that opinion.
In his February 28, 2014 opinion, Dr. Brudenell noted that Mr. Chance's MRI of the lumbar spine revealed "three-level lumbar disc disease" and "significant left foraminal encroachment at the L3-4 level." He prescribed Flexeril 10 mg and noted that Mr. Chance was taking ibuprofen 200 mg. He referred Mr. Chance to the in-house spine doctors for further care and noted that Mr. Chance reported that he had "not been able to work for at least the last three weeks secondary to his lumbar left hip pain." Dr. Brudenell noted no knee or elbow symptoms.
Mr. Chance argues that at the time of Dr. Brudenell's January 2014 and February 2014 opinions he had not yet made a disability claim "so there is no reason to believe that Dr. Brudenell was opining in derogation of any authority of the agency to adjudicate disability."
Incongruities between Dr. Brudenell's disability work form responses and his contemporaneous treatment records as noted by the ALJ are specific and legitimate reasons for rejecting Dr. Brudenell's opinion of Mr. Chance's work limitations.
OT Liz Dowler examined Mr. Chance on April 2-3, 2015. Her physical assessment of Mr. Chance showed "limited motion in his lumbar spine most significantly in flexion, lateral bending and rotation to the left" with 5/5 motor strength in the lower extremities and poor grip and pinch strength in the right arm due to tendimopathy. She limited Mr. Chance to sedentary work and stated that "[e]ssentially he is unable to work." OT Dowler opined that Mr. Chance was unable to crouch or bend, crawl, twist, reach overhead or to the floor, and could only kneel on one knee. She opined that his medications prevented him from driving safely.
An ALJ may discount lay testimony that conflicts with medical evidence.
For the foregoing reasons, the ALJ provided germane reasons for discounting OT Dowler's opinions.
Mr. Chance asserts that the ALJ erred because Mr. Chance's "right knee impairment and left shoulder impairment can be critical in the context of judicial appellate review of a residual functional capacity of Light exertional capacity."
The ALJ found that Mr. Chance had the "residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)." In addition, the ALJ limited Mr. Chance to "frequent pushing/pulling with left lower extremity; only frequent climbing of ramps or stairs; only occasional climbing of ladders, ropes, or scaffolds; only occasional stooping, kneeling, crouching, and crawling; only occasional repetitive overhead work with the left upper extremity (non-dominant); the avoidance of concentrated exposure to excessive vibration and unprotected heights; and a sit/stand option allowing individual to alternate sitting or standing positions throughout the day."
A court should affirm an ALJ's determination of a claimant's RFC "if the ALJ applied the proper legal standard and his decision is supported by substantial evidence."
Here, the ALJ considered Mr. Chance's knee impairment. He noted that "the medical evidence of record fails to establish the existence of a left knee impairment" after the alleged disability onset date of January 2014.
ALJ Hebda determined that regarding Mr. Chance's left shoulder, "the medical evidence of record does not include radiographic or other objective evidence of a left shoulder impairment."
The ALJ also considered opinion evidence. ALJ Hebda gave Dr. Backlund's lifting and carrying, stooping, kneeling, crouching, and crawling opinions "great weight," but also found Mr. Chance was more limited in his upper and lower extremities than Dr. Backlund opined.
Here, the ALJ adequately considered Mr. Chance's knee and shoulder limitations in determining the RFC. Substantial evidence in the record supports the ALJ's RFC decision.
The Court, having carefully reviewed the administrative record, finds that the ALJ's determinations are free from legal error and supported by substantial evidence. Accordingly, IT IS ORDERED that Mr. Chance's request for relief at Docket 13 is DENIED and the Commissioner's final decision is AFFIRMED.
The Clerk of Court is directed to enter a final judgment accordingly.
