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Toby D. Boles v. Michael J. Astrue

October 7, 2011

TOBY D. BOLES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

The plaintiff, Toby D. Boles ("Boles"), seeks judicial review of the Social Security Commissioner's denial of his applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401-433, and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et. seq.

I. BACKGROUND

A. Procedural History

Boles filed applications for DIB and SSI on August 6, 2007, alleging that he has been disabled since October 5, 2004. (Tr. 266-80). His applications were denied initially and upon reconsideration. (Tr. 163-67, 173-77). At his request, an administrative law judge (ALJ) convened a hearing on October 29, 2009. (Tr. 28-145. 147).

The ALJ issued his written opinion on November 13, 2009. (Tr. 10-22). Therein he concluded that Boles was not disabled as defined by the applicable regulations and therefore entitled to neither DIB nor SSI. (Tr. 10-22). Dissatisfied, Boles requested a review of the ALJ's decision with the Appeals Council. (Tr.146-48, 168, 438-40). Upon completion of its review, the Appeals Council adopted the ALJ's decision as the Commissioner's final decision. (Tr. 1-6).

Boles initiated the above-captioned action on September 17, 2010, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). See Docket No. 1. He filed a Motion for Summary Judgment on January 1, 2011. See Docket No. 13. The Commissioner filed his own motion for summary judgment on February 11, 2011. See Docket No. 16. Both motions have now been fully briefed and are ripe for consideration.

B. General Background

Boles was born on November 25, 1957. (Tr. 34). He was 51 years at the time of his administrative hearing. (Id.). He has a GED. (Tr. 365, 375). He served in the United Army from 1976 until 1979. (Tr. 39). In the fifteen years preceding the alleged onset of his disability, he labored in construction industry, was briefly employed as a deburrer, traveled with a carnival, sold windows and siding, and worked for a mortgage broker. (Tr. 325, 398-404, 435). In 2005, he worked very briefly as a wire harness assembler for Killdeer Mountain Manufacturing and heavy equipment operator for Morris, Inc. (Tr. 49-53). In 2006, he stacked bricks for Hebron Brick. (Id.). In 2008, he sold some scrap metal for approximately $1,200. (Id.). He has not engaged in anything that would qualify as substantial gainful activity since October 5, 2004, however. (Tr. 12). By his estimate, he owes between twenty-five and thirty thousand dollars in child support. (Tr. 55).

At the time of the administrative hearing Boles was living with his fiance and her two children in Hebron, North Dakota. (Tr. 35). The four of them were subsisting largely on food stamps, fuel assistance, and his fiance's SSI benefits. (Tr. 42-43, 45).

Boles has a history of hepatitis C, coronary artery disease, bradycardia, degenerative disc disease, dyslipidemia, bilateral sacralization with moderate to significant disc space narrowing at L5-S1, a medial collateral ligament strain and torn medial meniscus in his left knee, and bilateral rotator cuff tears. He also suffers from depression, anxiety, post traumatic stress disorder, and an avoidant personality disorder. (Tr. 91-93). He has been prescribed Zanex, Zoloft (or its generic equivalent), Lisprinol, Plavix, Meditropinol, Lexapro, Lipitor, and nitroglycerin. (Tr. 45, 98-100, 472). However, he maintains that he cannot afford to have all of these prescriptions filled and is largely reliant upon the samples given to him by his physicians. (Tr. 47, 319).

Boles complains of numbness in his legs as well as chronic back, knee, hip, sciatic, testicular, neck, and chest pain. (Tr. 79, 83, 170, 322, 397, 465-66). On a scale of one-to-ten, he rates his pain as an eight plus. (Tr. 85, 322, 465-66). Although he has at various times been prescribed Tylox, hydrocodone, Toradol, Demerol, and morphine for his pain, he relies primarily on over-the-counter painkillers (read: ibuprofen, naproxin, and aspirin) as well as hot showers for pain relief. (Tr. 47, 85). He insists that his usage of over-the-counter painkillers is borne in part out of necessity as he has no health insurance and cannot afford his prescribed pain medication. Moreover, he reportedly does not like taking prescription pain medication unless absolutely necessary on account of their side effects, which include: night sweats, trouble urinating, constipation, dry mouth, dizziness, blurred vision, and fatigue. (Tr. 49, 87).

Boles is a heavy smoker and admitted binge drinker. (Tr. 95). He also has "a prior history of cocaine, methamphetamine, marijuana, and acid use." (Tr. 667).*fn1

Although he tries to pitch in around the house, Boles insists that his physical and mental impairments prevent him from doing too much. (Tr. 320). He cooks, cleans, folds laundry, and shops for groceries, albeit on a limited basis. (Tr. 391-32). However, he no longer feels capable of performing yard work. (Id.). And by his estimation he can stand for no more than thirty minutes at a time and lift no more than ten pounds. (Tr. 90-91).

C. Medical Records

Boles sought treatment from Dr. Robert Cusic on September 23, 2003 for a back injury that he had sustained in a workplace slip and fall accident. (Tr. 474, 540). He returned to Dr. Cusic on November 24, 2003, with complaints of continued back pain. (Tr. 547). According Dr. Cusic's notes, Boles exhibited some mild to moderate muscle spasms as well as degenerative disc changes of L4-5 through L5-S1. (Tr. 547). Dr. Cusic placed Boles on Tylox, advised him to avoid heavy exertion, and arranged for a specialist consultation on his back. (Tr. 547-48).

On December 2, 2003, Boles presented to nurse practitioner Kevin Chausee of the Bone and Joint Center with complaints of severe back, buttock and leg pain. (Tr. 512). Chausee initially observed that, pain complaints aside, Boles appeared quite healthy. (Id.). Upon further examination, Chausee noted that Boles was experiencing severe spasm in the muscles adjacent to his spinal column and that x-rays had revealed degenerative changes to the lower two levels of his lumbar spine. (Id.). Diagnosing Boles with low back pain and degenerative disc disease, Chausee prescribed Boles Vicodin and Flexeril (a muscle relaxant), administered lumbar epidural injections, referred him to physical therapy, and recommended that he refrain from work for one month. (Tr. 513).

On December 2, 2003, Chausee issued a "Worker's Compensation Report" on Boles' behalf. (Tr. 531). Therein he stated that Boles was suffering from a temporary disability and was not to work for at least one month. (Id.). However, in closing, he indicated that Boles' prognosis was good. (Id.)

Boles was evaluated by physical therapist Tom Henke on December 11, 2003. (Tr. 474-77, 516-519, 532-35). During the evaluation, Boles advised Henke that: (1) his condition worsened when bending, sitting, or lying down; (2) his condition improved when stranding or otherwise on the move; and (3) he was having difficulty sleeping on account of his pain. (Id.). Setting a goal to improve Boles' general condition, Henke crafted a plan calling for Boles to participate in therapy three times per week. (Id.).

Boles reported for physical therapy on December 11 and 17, 2003. (Tr. 536-538). However, it appears that he was formally discharged physical therapy on January 7, 2004, after be began canceling or otherwise failing to report for treatments as scheduled. (Tr. 478-79, 537-38).

Boles underwent an MRI on his lumbar spine on January 14, 2004. (Tr. 528). According to the radiologist's report, the MRI showed spondylosis greatest at L5-S1 but not no stenosis. (Id.).

Boles returned to Chausee on January 16, 2004. (Tr. 514). In his examination notes, Chausee indicated that Boles was not a good surgical candidate because: (1) he had not been given enough time to see if his condition would resolve on its own; and (2) he was taking too much narcotic pain medication (oral Demoral) secondary to his dental issues. (Id.). Chausee advised Boles to work with Dr. Cusic to wean himself off of the narcotic pain medication, quit smoking, and participate in physical therapy. (Tr. 514-15). Chausee added that Boles would be referred for a surgical evaluation if, in six weeks, he had ceased smoking, changed his medication, and yet still suffered from severe back pain. (Id.).

On February 24, 2004, Boles contacted Dr. Cusic to request prescriptions for hydrocodone and cyclobenzaprine. (Tr. 546). This apparently was not the first time that Boles had contacted Dr. Cusic requesting medication. (Id.). According to the physician's notes, Dr. Cusic refused to dispense hydrocodone to Boles. In so doing, he advised Boles that any such narcotics would have to come from either Boles' chronic pain management doctor or back doctor. (Id.). He did, however, provide Boles with a thirty-day supply of cyclobenzaprine. (Id.).

Two days later, on February 26, 2004, Boles presented to Dr. Dennis Wolf, complaining of chronic back pain and requesting prescription painkillers. (Tr. 545). Dr. Wolf provided Boles with a twelve to fourteen day supply of Amitroptyline and Lorcet. (Id). Dr. Wolf also visited with Boles about the use of prescription medication for chronic pain management. (Id.).

Boles apparently made an appointment to see Dr. Wolf on March 12, 2004. (Tr. 544). He failed to keep the appointment, however. (Id.). In noting Boles' absence, Dr. Wolf expressed the need to get Boles back to Vocational Rehabilitation. (Id.).

Boles returned to Dr. Wolf on December 27, 2004, complaining about chronic back pain, chest pain, numbness and weakness in his lower extremities, difficulty walking and maintaining his balance, fatigue, insomnia secondary to pain, blurred vision, occasional dysophagia, indigestion, and intermittent testicular pain. (Tr. 541). In his notes, Dr. Wolf mentioned that Boles had gone to Bismarck for pain management, was no longer taking any prescription medication, and that the ibuprofen he had been taking for pain had helped. (Id.). Dr. Wolf further observed that Boles had some difficulty getting out of his chair and standing up, needed to be assisted on to the examination table, and struggled a bit when dressing himself at the examination's conclusion. With respect to Boles' physical condition, Dr. Wolf noted that the Boles' left calf had atrophied, that his range of motion appeared to be limited on account of his pain, and that there was "decreased pinprick and tactile sense on [his] left lateral leg and some degree on the right." (Tr. 542-43). In conclusion, Dr. Wolf opined that Boles was permanently disabled but should still submit to a functional capacity assessment for completeness (Id.).

Boles presented to the emergency room on January 28, 2005, complaining of pain and swelling in his jaw. (Tr. 524). He was diagnosed with dental abscesses and right hemifacial cellulitis, for which he was intravenously given Ancef and Toradol. (Tr. 524-25). Upon discharge, he was prescribed Keflex and Tylox. (Tr. 525). He was also encouraged to follow up with a dentist. (Id.)

On March 30, 2005, Boles sought treatment from Teresa Neilson, a physicians assistant, for insomnia secondary to his complaints of back pain. (Tr. 488, 616). When summarizing her impression of Boles, Neilson was careful to note that, although Boles had attributed his insomnia to his ongoing back issues, he "really [was] not coming for the pain." (Id.). Neilson prescribed Ambien to Boles for his insomnia. (Id.). She also instructed Boles to continue taking ibuprofen for his back pain. (Id.).

Boles presented to the emergency room on June 15, 2005, with complaints of severe pain on the left side of his chest. (Tr. 491-94, 618-20). His initial EKG was unremarkable. (Id.). His chest x-rays were normal. (Tr. 503). He was nevertheless admitted to intensive care by the attending physician, Dr. Radu Rauta, and started on an anticoagulant, beta-blockers, and nitrogylcerin. (Tr. 491-94, 618-20).

Dr. Rauta discharged Boles from the hospital on June 15, 2005, with the following medications: Zoloft, Lipitor, and aspirin. (Tr. 494). According to Dr. Rauta's discharge summary, a Cardiolite treadmill stress test and electrocardiogram performed on Boles had not revealed any appreciable changes and that three sets of cardiac enzymes tests had conclusively ruled out a miocardial infarction. (Tr. 494).

On June 23, 2005, Boles returned to the hospital for a follow-up examination. (Tr. 488, 616-17). He reported having an episode of chest pain, which Dr. Rauta suspected was most likely triggered by anxiety. (Id.). Dr. Rauta instructed Boles to continue taking Zoloft and Lipitor. (Id.). In addition, Dr. Rauta prescribed Alprazolam to Boles for his anxiety. (Id.).

On October 20, 2005, Boles apparently slid off of a roof on which he had been working and fell twelve to fifteen feet to the ground below. (Tr. 468, 495-96, 622-23). Although he was able to bear his weight and continue working, he later developed stiffness and pain in his left leg and knee. (Id.).

On October 23, 2005, Boles presented to the emergency room seeking treatment for his left knee pain. (Id.). Dr. Kent Hoerauf fitted him with a full length knee immobilizer, gave him Darvocet for the pain, advised him to supplement the Darvocet with ibuprofen, and scheduled an MRI. (Tr. 468).

Boles underwent an MRI on November 7, 2005. (Tr. 471, 506). The MRI revealed that he had torn the medial meniscus in his left knee, strained the medial and anterior cruciate ligaments in his left knee, and likely bruised his bone. (Id.).

Boles returned to the West River Regional Medical Center for a follow-up exam with Dr. Hoerauf on November 10, 2005. (Tr. 470, 490, 617). According to the treatment notes, Boles reported that his condition made it difficult to continue his construction/roofing work. (Tr. 470). Specifically, he complained that he had trouble walking on rooftops and negotiating ladders. (Id.). Noting the absence of effusion to the joint or peripheral edema, Dr. Hoerauf referred Boles to physical therapy and started him on 800 milligrams of ibuprofen three times a day. (Id.). That same day Dr. Hoerauf apparently advised Workforce Safety and Insurance that Boles could return to light work. (Tr. 442).

On January 2, 2006, Boles presented to the emergency room, complaining that pain was intermittently radiating through the left side of his chest and down his arm. (Tr. 497, 624-26). The attending physician, Dr. Laura Walker, reported that, although Boles admittedly used alcohol on a regular basis and engaged in high risk cardiac behavior such as smoking one pack of cigarettes per day, his past medical history was fairly unremarkable, his EKG appeared normal, and his vital signs were stable. (Tr. 497-99). Dr. Walker, nevertheless admitted Boles to the hospital and started him on oxygen, morphine, and nitroglycerin. (Tr. 498).

Boles was subsequently subjected to a physical stress test and myocardial perfusion scan, neither of which revealed any abnormalities. (Tr. 508, 638-39, 642).

Dr. Rauta examined Boles on January 3, 2006. (Tr. 501-04, 628-32). He noted that, while Boles' EKG was normal and that the results of labwork ordered upon Boles' admission to the hospital had raised no red flags, Boles did experience an episode of asystole (a state of no cardiac electrical activity) that lasted approximately six seconds. (Id.). He did not feel the episode was cause for great concern, however, hypothesizing that it most likely a side effect from the morphine given to Boles upon admission to the hospital. (Id.). Nevertheless, he wanted to keep Boles in intensive care for the time being and have an external pacemaker standing by Boles' bedside. (Id.).

Given Boles' clinical and family history, he also thought it wise to refer Boles to cardiology for an evaluation. (Id.). Finally, he recommended that Boles should continue using a proton pump inhibitor and get addiction counseling. (Tr. 501).

On April 24, 2006, Boles submitted to a psychological examination with Dr. William Stone, a clinical psychologist, at the Social Security Administration's (SSA) behest and in conjunction with a previously filed application for benefits. (Tr. 480).*fn2 Dr. Stone noted that Bole was cooperative, comported himself in an appropriate manner, and appeared to have good recall. (Tr. 484). Dr. Stone further estimated that Boles intellectual functioning was in the high average range given his use of vocabulary, sentence structure, and comprehension. (Tr. 484).

On May 5, 2006, Dr. Stone formally reported his findings to the SSA. (Tr. 480-86). In the report, he opined that Boles likely suffered from mild depression, ongoing alcohol dependence, and an antisocial personality disorder. (Id.). He went on to express his concerns about Boles' ability to manage money and cultivate relationships on the job. (Tr. 485-86). However, he added that, in his opinion, Boles remained capable of performing basic daily activities, sustaining concentration and attention, understanding and carrying out instructions under ordinary ...


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