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Denin J. Korgel v. Michael J. Astrue

July 12, 2012

DENIN J. KORGEL, 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

Plaintiff, Denin J. Korgel, seeks judicial review of the Social Security Commissioner's denial of his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 ("Act"). The case was referred to the undersigned for final disposition by consent of the parties.

I. BACKGROUND

A. Procedural history

Korgel first applied for disability insurance benefits in 2005. (Tr. 97). ALJ Geyer determined Korgel was not disabled on September 8, 2007. (Tr. 107). No appeal was taken.

Korgel filed his second application for disability insurance benefits on October 12, 2007, alleging that he had been disabled since January 8, 2004. (Tr. 154). His application was denied initially and upon reconsideration, prompting him to request a hearing before an administrative law judge ("ALJ"). (Tr. 1-11). Pursuant to his request, ALJ James Geyer conducted a hearing on August 28, 2009. (Tr. 28). At the time of the hearing the disability onset date was amended to September 9, 2007. (Tr. 33).

On November 9, 2009, the ALJ issued a decision wherein he concluded that Korgel was not entitled to disability insurance benefits (Tr. 12-23). The ALJ concluded that Korgel had failed to demonstrate that he was disabled from September 6, 2007, through June 30, 2008, the last date he was insured under the Act.

Korgel requested a review of the ALJ's decision with the Appeals Council. (Tr. 7-8). The Appeals Council denied his request for review thereby rendering the ALJ's decision as the Commissioner's final decision on March 18, 2011. (Tr. 1-3). On April 12, 2011, Korgel filed a complaint with this court seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c). See Docket No. 1.

Korgel filed a motion for summary judgment on September 21, 2011. See Docket No. 13. The Commissioner filed a response in opposition to Korgel's motion and his own motion for summary judgment on October 21, 2011. See Docket No. 16. Korgel filed a reply brief on November 17, 2011. See Docket No. 21.

B. Personal background

Korgel was born in 1969 and was forty years old at the time of the hearing before the ALJ in August 2009. (Tr. 34). He is single and lives on a farm near Minot, North Dakota, with his sixteen year old son. (Tr. 34). He inherited the farm from his parents. (Tr. 490). His father died in 2006, and his mother and grandmother died in 2007. (Tr. 490). He has a high school education plus a year and a half of college. (Tr. 35).

Korgel was injured on August 15, 2003, while working for the City of Minot as a garbage collector. (Tr. 304). He stepped off the back of the garbage truck, slipped on some gravel and twisted his ankle on the curb. (Tr. 304). This resulted in quite a bit of pain and swelling, but no bones were broken. (Tr. 160). He was treated at the Medical Arts clinic on August 19, 2003, and released back to work with limited walking. (Tr. 365-66). Despite various treatments, including an air splint, over the next few months, the injury remained painful. (Tr. 289). He underwent a nerve block in the lumbar spine in an attempt to relieve the pain in November 2004. (Tr. 278). Korgel maintains the nerve block punctured a disc, worsened his problems and resulted in constant low back pain. (Tr. 278, 473). He had left ankle surgery in April 2005 for tarsal tunnel syndrome. (Tr. 278). This reportedly consisted of laying the nerves and tendons back into the correct position. (Tr. 473). Improvement was reported as slight after this surgery. (Tr. 278). A ganglion cyst was removed from his left wrist on May 15, 2009. (Tr. 531).

Korgel reported that Workers Compensation determined there was nothing wrong with him in January 2004 and so the City of Minot let him go. (Tr. 477). He worked at Sykes in Minot from September 15, 2004, until November 15, 2004, doing telemarketing. (Tr. 244). He has not engaged in any substantial gainful activity since November 15, 2004. (Tr. 244). Korgel's past relevant work includes that of a railroad track repairman, carpenter, garbage collector, cook, telephone solicitor, photocopier repairman, and computer support analyst. (Tr. 270). He has alleged disability due to nerve damage and chronic back and ankle pain. (Tr. 187).

C. Medical evidence

1. Evidence prior to the relevant time period (8/15/03-9/8/07)

Korgel's initial injury occurred on a Friday, August 15, 2003. (Tr. 364) He was able to finish work after the injury. (Tr. 364). He had the weekend off and did not work the following Monday due to pain and swelling. (Tr. 364). He sought medical attention August 19, 2003. (Tr. 2003). Dr. Reeve described the injury as tender and swollen. (Tr. 364). X-rays were negative for fractures. (Tr. 364). He was told he could work as long as he limited his walking, did no running or jumping on and off the truck and wore an ankle brace for three weeks. (Tr. 364). He returned to Dr. Reeve on August 27, 2003, complaining that his ankle hurt a lot more. (Tr. 363). On examination the ankle was less swollen with a fairly good range of motion. (Tr. 363). He had worn the air splint as instructed. (Tr. 363). He returned to work but was limited to sitting duties and sent for physical therapy. (Tr. 363). He returned again to Dr. Reeve on September 16, 2003, for a recheck and reported a reinjury while jumping off the garbage truck. (Tr. 362). The ankle was mildly swollen. (Tr. 362). He had been attending physical therapy. (Tr. 362). His work restrictions were continued and he was referred to an orthopedic surgeon and a physiatrist. (Tr. 362).

Korgel saw Dr. Zhang, a physiatrist, on September 22, 2003. (Tr. 360-61). Korgel rated his pain as a 3 on a 5 point scale. (Tr. 360). Some swelling was found on the medial ankle but no swelling or bruising was found on the lateral ankle. (Tr. 361). The ankle was quite tender. (Tr. 361). Korgel was able to walk without significant pain or limping but did feel some pressure. (Tr. 361). Tylox was given on an as needed basis for pain along with Celebrex for two weeks. (Tr. 361). Physical therapy was continued as was the off work status for another week. (Tr. 361).

Korgel attended physical therapy at Trinity Health Center from August 28, 2003, until November 4, 2003, for a total of fifteen visits. (Tr. 340, 353). Korgel rated his pain as a 3-4 on a 5 point scale (3-4/5) at the initial evaluation on August 28, 2003. (Tr. 343). Korgel rated his pain as 3/5 on September 3, 2003, and a 2/5 on September 5, 2003. (Tr. 345). Significant improvement in range of motion and fair to good tolerance of the exercise program was noted on September 5, 2003. (Tr. 345). Pain was reported as 2.5-3.5/5 on September 12, 2003. (Tr. 346). Pain was a 3-4/5 on September 23, 2003. (Tr. 347).

A return to work reportedly increased Korgel's symptoms. (Tr. 347). Korgel rated his pain as a 2.5-3 on a 5 point scale on September 25, 2003. (Tr. 340). Initially he improved with the therapy, but progress decreased when he returned to full work duties. (Tr. 340). A likely tear of the anterior calcaneofibular ligament (ACL) was noted on September 29, 2003, along with the observation that Korgel's injury was taking longer than normal to resolve. (Tr. 342). He was restricted to sedentary work. (Tr. 342).

On October 6, 2003, Korgel rated his pain and reported being frustrated with what he could do at work and that he was currently working eleven hour days doing computer work. (Tr. 350). Pain was reported as 2.5/5 on October 17, 2003. (Tr. 351). Improved gait and balance were noted at this visit, but Korgel continued to complain of associated pain. (Tr. 351).

Pain was reported as 1.5/5 on October 22, 2003. (Tr. 352). On October 24, 2003, pain was reported as 1/5 to 2/5 at rest and 2/5 to 3/5 with activity. (Tr. 352). On October 27, 2003 pain was reported as 2/5 to 2.5/5 at rest and 3/5 to 4/5 with activity. (Tr. 352). Laying brick at his home reportedly increased the pain in his ankle. (Tr. 352).

Korgel was discharged from physical therapy on October 30, 2003. (Tr. 353). He reported pain with activity at 3-4/5 the day he was discharged. (Tr. 353). His gait and left ankle strength were rated as within functional limits although his ankle was tender. (Tr. 353). He was given a home exercise program to follow. (Tr. 353).

At the suggestion of Dr. Zhang, Korgel was seen by Dr. Kindy for an orthopedic consultation on September 30, 2003. (Tr. 338). Tenderness and mild swelling of the left ankle with full range of motion was noted. (Tr. 338). Dr. Kindy determined rehabilitation was incomplete and continued his physical therapy. (Tr. 339). A stirrup brace was also prescribed. (Tr. 339). Tylox was discontinued as a narcotic was not indicated at this stage of recovery. (Tr. 339). Celebrex and Tylenol were continued for pain. (Tr. 339). He was released to full work with no limitation on walking as long as he did not do any jumping and avoided uneven ground. (Tr. 339).

Korgel saw Dr. Kindy for a follow up visit on November 7, 2003, at which time he complained of excruciating pain in his left ankle which seemed to be out of proportion to the initial injury. (Tr. 336). The swelling was essentially all gone, he had full range of motion and his gait was normal. (Tr. 336). Dr. Kindy noted there might be an augmentation of symptoms due to secondary gain as the injury was covered by Workers Compensation. (Tr. 336). A bone scan was conducted and reviewed with Korgel on November 17, 2003. (Tr. 334). The bone scan was within normal limits. (Tr. 334). It was suggested Korgel see a foot and ankle specialist as Dr. Kindy could not find a cause of Korgel's reported pain. (Tr. 334).

Korgel saw Dr. Hart at the suggestion of Dr. Kindy on November 19, 2003. (Tr. 331). X-rays were negative. (Tr. 331). Ankle motion and strength were normal as was strength in the lower extremities. (Tr. 331). Dr. Hart was perplexed why he had not made better progress. (Tr. 332). An MRI was suggested. (Tr. 332). The MRI showed a very small amount of fluid within the joint but did not reveal any injury to the joint. (Tr. 327). Tendons were normal. (Tr. 327). The ankle remained tender. (Tr. 328). X-rays showed a small avulsion injury of the anterior talofibular ligament, but surgery was not indicated. (Tr. 328). More physical therapy was suggested. (Tr. 328). As was suggested, Korgel made another attempt at physical therapy starting on December 10, 2003. (Tr. 323). Korgel described his pain as ranging from a 2/5 to a 4/5. (Tr. 323). Symptoms of plantar fascitis were noted. (Tr. 324). He reported increased pain from his midcalf to his toes on December 15, 2003. (Tr. 322). He was given orthotics to improve his gait. (Tr. 322). Progress notes for December 22, 2003, reveal Korgel was sure his range of motion had decreased but was actually normal. (Tr. 321). He complained of swelling but none was observed. (Tr. 321). Gait was significantly improved and normal with the orthotics. (Tr. 321). He expressed concerns regarding returning to work and was informed he could drive truck and ease back into working behind the truck. (Tr. 321).

Korgel was seen by Dr. Zhang on December 29, 2003, following completion of his second attempt at physical therapy. (Tr. 320). The left foot showed no swelling, edema, erythmea or muscle atrophy. (Tr. 320). Range of motion was normal. (Tr. 320). Korgel reluctantly agreed to go back to work with the restriction that he alternate driving truck and working the back of the truck on an hourly basis. (Tr. 320). The new work schedule lasted three days, and then Korgel returned to Dr. Zhang complaining of pain. (Tr. 318). His ankle showed no swelling, erythmea, or edema and the strength was good. (Tr. 318). Very little tenderness was observed. (Tr. 318). Range of motion was normal. (Tr. 318). No cause of the pain could be identified, and he was referred to the Mayo Clinic for further evaluation provided Workers Compensation would pay for it. (Tr. 316). It was noted an evaluation at the Mayo Clinic was not medically necessary and could not be supported by objective medical findings. (Tr. 316-17). He was reduced to sedentary to light work. (Tr. 318).

Korgel was seen at the Mayo Clinic on June 7, 2004, by an orthopedic surgeon, Dr. Turner. (Tr. 313-14). Korgel reported he had lost his job. (Tr. 314). His ankle was tender, but surgery was ruled out as a treatment option. (Tr. 314-15). Bracing was recommended as was consultation with a neurologist. (Tr. 315).

Korgel underwent a nerve conduction study on July 14, 2004. (Tr. 308-310). Dr. Lee's diagnosis was tarsal tunnel syndrome. (Tr. 310). The tarsal tunnel syndrome was fond to be related to his August 15, 2003, work injury. (Tr. 307).

Korgel was evaluated at the Trinity Hospital Pain Center on August 13, 2004, by Dr. Colon. (Tr. 301). Korgel described his pain as a 2/5. (Tr. 301). Complex regional pain syndrome was ruled out. (Tr. 301). Compressive neuropathy was a possible diagnosis with surgery a possible treatment. (Tr. 302-03). Korgel was cautioned against strenuous activity but told there was no reason why he could not perform sedentary work. (Tr. 303).

Dr. Lee referred Korgel to Dr. Williams for further evaluation on July 28, 2004. (Tr. 304). Dr. Williams found Korgel had a significant amount of pain and that the pain was real. (Tr. 305-06). He suggested a nerve block, pain management, and retraining for sedentary work. (Tr. 306). At a recheck on September 22, 2003, Korgel rated his pain as a 1/5. (Tr. 299). Tarsal tunnel syndrome was diagnosed. (Tr. 299). Korgel was referred to a podiatrist for a surgical evaluation. (Tr. 299).

Korgel returned to Dr. Colon on October 28, 2004, for another evaluation. (Tr. 297). Korgel rated his pain as 2/5 to 3.5/5. (Tr. 297). Dr. Condon's impression was left foot neuropathic pain and tarsal tunnel syndrome which he described as probably an incidental finding. (Tr. 297). A lumbar nerve block was suggested, and Korgel agreed to undergo the procedure. (Tr. 297). A left lumbar sympathetic nerve block was performed by Dr. Colon on November 16, 2004. (Tr. 295). Korgel tolerated the procedure well. (Tr. 295).

Korgel saw Dr. Colon for a follow-up visit on November 29, 2004, at which time he reported the nerve block had given him no relief, and his pain was now a 5/5. (Tr. 293). Korgel reported that since undergoing the nerve block he had been experiencing a significant amount of pain in his lower back with shooting pain down his left leg and foot. (Tr. 293). Dr. Colon noted Korgel pointed to his lower iliac joint as the starting point of the pain which is far from where the procedure was performed. (Tr. 293). Korgel reported no paraesthesia however. (Tr. 293). Dr. Condon described Korgel as very anxious and demanding with many questions regarding his work situation and disability. (Tr. 293). Korgel produced some Workers Compensation paperwork he requested be filled out. (Tr. 293). Dr. Condon noted there was some question in his mind whether there might be some "secondary gain" issues with Korgel and his Workers Compensation status. (Tr. 293). Korgel was given a prescription for Oxycodone, referred to a neurologist, and an MRI was ordered. (Tr. 294). A December 10, 2004, MRI revealed mild narrowing of the L4-5 and intervertebral disc space and slight facet joint degenerative changes in the L5-S1. (Tr. 283, 285, 291). The MRI of the lumbar spine was otherwise described as unremarkable. (Tr. 292). Regional pain syndrome was ruled out. (Tr. 291). Korgel continued to complain of back and ankle pain on December 30, 2004. (Tr. 283). On January 14, 2005, Korgel again inquired about disability and whether he was disabled and expressed a concern about generating income. (Tr. 282). His medication was switched from Oxycodone to Vicodin ES. (Tr. 282). His pain was described as neuropathic. (Tr. 282).

Korgel saw Dr. Wongirad on December 23, 2005, on a self referral basis. (Tr. 278). Korgel blamed the nerve block for his lower back pain. (Tr. 278). He reportedly had left ankle surgery in April 2005 in Rapid City for tarsal tunnel syndrome. (Tr. 278). He reported no bowel or bladder problems. (Tr. 278). He was still taking Oxycodone four times per day. (Tr. 279). Dr. Wongirad concluded his low back pain was not due to nerve damage because he still had good knee and ankle reflexes and good strength. (Tr. 279). Neuropathic pain in the ankle and foot were suspected along with soft tissue pain. (Tr. 280). The low back pain was likely due to chronic stress and strain on the low back from poor posture and limping. (Tr. 280). Strengthening exercises were suggested with the explanation that it would take six months before a decrease in pain would result. (Tr. 280).

Korgel was seen by Dr. Sieg at MeritCare in Fargo, North Dakota, for a neurosurgical consultation regarding chronic back and ankle pain on June 26, 2007. (Tr. 370-376). He described his pain as 5-7 on a 10 point scale and reported taking Oxycodone-Acetaminophen 5/325 tablets every six hours as needed. (Tr. 370). He was described as moving slowly around the exam room, rising slowly from his chair and guarded in his activities. (Tr. 373). Korgel's pain was described as diskogenic in origin rather than radicular. (Tr. 374). As Korgel refused any sort of invasive care Dr. Sieg had little to offer him in way of treatment other than some Ultram samples for pain, a suggestion he establish a primary care physician in Minot, and a note to the file that Korgel should not be given narcotic medications due to the ongoing chronic nature of the problem. (Tr. 374).

Korgel underwent an evaluation on November 27, 2006, by physical therapist, Reed Argent. (Tr. 425-27). Korgel reported his back and ankle pain ranged from a 3/10 on good days to a 10} on bad days. (Tr. 425). He described numbness in the two outside toes on his left foot. (Tr. 425). He reported using a cane at all times. (Tr. 426). Examination revealed some swelling in the left foot, some limited range of motion, and fairly well preserved muscle strength. (Tr. 426). Argent stated Korgel would not be able to perform even sedentary gainful activity. (Tr. 427).

Argent completed a physical capacities evaluation of Korgel on December 20, 2006. (Tr. 422-23). Argent found Korgel could sit, stand, or walk less than thirty minutes at a time. (Tr. 422).

He was found able to sit and stand for two to three hours per day and walk up to one hour per day. (Tr. 422). It was noted Korgel would need to change positions often, move around periodically, and lie down at times. (Tr. 422). Lifting was limited to less than fifteen pounds, and pain was described as moderate. (Tr. 422).

Dr. Reeve's assessment of Korgel on August 8, 2007, was chronic low back pain with ankle and foot problems and depression. (Tr. 382). Tramadol 50mg was prescribed for pain. (Tr. 382). He described Korgel as disabled. (Tr. 382). Dr. Reeve noted on September 6, 2007, Korgel had a bit of trouble getting to sleep but was able to sleep through the night. (Tr. 380).

2. Evidence during the relevant time period (9/9/07-6/30/08)

Korgel was seen by Dr. Reeve on December 12, 2007, for situational depression. (Tr. 388). His mother and grandmother had died recently. (Tr. 388). His Zoloft was increased from 50 mg per day to 100 mg per day. (Tr. 388).

Korgel was back to see Dr. Reeve on June 27, 2008, for a recheck of his low back pain. (Tr. 431). Korgel reported constant back pain which made him unable to sleep at night. (Tr. 431). Korgel also reported a history of two ruptured discs in his back. (Tr. 431). He was observed walking a bit bent over and using a cane. (Tr. 431). His back was tender, but no significant muscle wasting was noted. (Tr. 431). Zoloft was discontinued, Tramadol was continued, and Cymbalta was started.

Dr. Rajnikant Mehta examined Korgel in connection with his disability claim on February 21, 2008, at the request of the SSA. (Tr. 392-93). Sensation was noted as normal everywhere except the left foot where it was diminished. (Tr. 392). No swelling, redness, or inflammation was noted in the ankles. (Tr. 392-93). No back spasms were noted, although Korgel reacted as though his back was painful. (Tr. 392). No muscle atrophy was observed. (Tr. 392). He limped slightly but was able to get up from his chair without much problem and go to the examination table, although he struggled somewhat to get off the table. (Tr. 393). Squatting was difficult. (Tr. 393). Range of motion in the neck and upper extremities was normal. (Tr. 393). Range of motion in the hip, knee, and ankle were normal on the right side and somewhat limited on the left. (Tr. 393). Motor function was normal. (Tr. 393). He was uncomfortable walking without his cane. (Tr. 393).

A state agency physician, Dr. Marlin Johnson, completed a "paper" physical residual functional capacity assessment on February 25, 2008, relying in part upon the findings of Dr. Mehta's examination. (Tr. 394-401). Dr. Johnson concluded that Korgel could occasionally lift twenty pounds, frequently lift ten pounds, stand or walk for two hours per day, and sit for six hours per day. (Tr. 395). He concluded Korgel's complaints were partially credible but overstated. (Tr. 399).

A psychiatric "paper" review made by Dr. Hase, Ph.D., in February 2008 found Korgel was depressed, but the depression caused no functional limitations. (Tr. 402-15).

Korgel was seen by Dr. Scott for pain in his left wrist on January 24, 2008. (Tr. 385-86, 390-91). X-rays revealed minimal degenerative changes at the base of his thumb but were otherwise normal. (Tr. 390). Overuse of his cane was found to be causing soreness. (Tr. 386). He was advised to switch hands with his cane and exercise. (Tr. 391).

3. Evidence after the relevant time period (7/1/08--Present)

Korgel saw Dr. Reeve on August 20, 2008, for a recheck. (Tr. 430). It was noted the Cymbalta had not helped. (Tr. 430). Tramadol was continued. (Tr. 430). Korgel reported using Advil as needed for pain. (Tr. 430). He was referred to a pain management program. (Tr. 430).

Korgel completed a three-week pain management program in September 2008 at the Tri-Life Center, L.L.P., Chronic Pain Management Center ("Tri-Life"). (Tr. 432-539). There he was seen by a team of professionals consisting of: Dr. Olson, M.D.; Bonnie Sjol, R.N. and Certified Pain Management Guide; and Arlo Pretzer, P.T. During Korgel's initial evaluation, his medications were Cymbalta, Tramadol, and Advil. (Tr. 535). His back and left ankle were tender, but the ankle was not swollen. (Tr. 534). His gait was slightly unsteady. (Tr. 465). The diagnostic impression of the program team at the initial evaluation was a pain disorder secondary to both a general medical condition and psychological factors along with a depressive disorder, not otherwise specified. (Tr. 539).

As part of the Tri-Life program, Korgel completed a self evaluation. (Tr. 492-506). He stated the cause of his pain was nerve damage and ruptured discs. (Tr. 493). In describing how the pain affected his family he said it makes him "extremely irritable" and that "being treated like I am a liar by doctors and judges has made me very cynical and snide towards people in general (I basically no longer like the human race)." (Tr. 498). He rated his pain as a 4 on the best day and 10 on the worst day. (Tr. 499). He reported sleeping or lying down fourteen hours per day, standing or walking two hours per day, and sitting eight hours per day in response to an activity questionnaire ...


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