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Fisher v. Colvin

United States District Court, D. Kansas

June 22, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.


J. THOMAS MARTEN, Chief District Judge.

Plaintiff Thomas Fisher seeks review of a final decision by defendant, the Commissioner of Social Security, denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, respectively. In his pleadings, plaintiff alleges error with regard to the Commissioner's decision that plaintiff is able to perform "other work" that exists in significant numbers in the national economy. Upon review, the court finds that the Commissioner's decision is supported by substantial evidence contained in the record. As such, the decision of the Commissioner is affirmed.

I. Factual and Procedural Background

Plaintiff's medical record, while it dates back to May 2000, is rather sparse. He was given a provisional diagnosis of thoracic outlet syndrome, but this was ultimately ruled out several months later. In late 2007 and early 2008, plaintiff was diagnosed with severe sleep disordered breathing and obstructive sleep apnea and was told to limit his driving and/or operation of heavy machinery until his sleep pathology could be corrected. Plaintiff's records then jump to April 2008, when he was seen by Dr. James J. Shafer for orthopedic issues, mainly in his lower extremities. He presented with normal gait and station and had excellent strength. His knees were not tender or swollen and he had a normal range of motion. Plaintiff was diagnosed with scoliosis (congenital), bilateral knee pain, and leg discrepancy with the right leg being slightly longer than the left.

Plaintiff returned to Dr. Shafer in May 2009 complaining of chronic back pain. He had a good range of motion, but some arthralgia in his knees. Plaintiff's complaints of bilateral knee pain reappeared in July 2009 when he saw Dr. Ray House. Dr. House noted chronic sequalae of an old injury in plaintiff's right knee, but reported that neither knee showed any acute abnormality. Radiological exams taken in January 2010 noted post-surgical changes in plaintiff's left leg, multiple calcific densities along the patellar tendon in his right leg, and osteophyte at the anterior tibia which might encroach upon the joint space in his left knee. Plaintiff rated his pain as a nine out of a possible ten.

On January 13, 2010, plaintiff saw orthopedic physician's assistant Bryan Meece and received an injection of Synvisc into his left knee and was instructed to take Tylenol as needed. Plaintiff was also prescribed Celebrex. When plaintiff returned to Meece in March 2010, he reported that he had run out Celebrex and had not refilled it in quite some time. Radiological exams of plaintiff's knees showed no changes.

On December 19, 2010, plaintiff underwent a Physical Residual Functional Capacity Assessment with state agency examiner Dr. Bernard Stevens. Dr. Stevens concluded that plaintiff could: (1) occasionally lift and/or carry fifty pounds, (2) frequently lift and/or carry twenty-five pounds, (3) stand and/or walk for a total of six hours during an eight-hour workday, (4) sit for a total of six hours during an eight-hour workday, and (5) engage in limited pushing and pulling of his lower extremities. Plaintiff was limited to only occasional kneeling, crouching, and crawling, and to never climbing ladders, ropes, or scaffolds. Plaintiff had no manipulative, visual, communicative, or environmental limitations.

On May 27, 2011, Dr. William Short completed a Physical Medical Source Opinion Questionnaire on behalf of plaintiff. After noting that he had only seen plaintiff one time (for the purpose of completing the Questionnaire), Dr. Short determined that plaintiff could: (1) sit for twenty minutes at a time, for less than two hours per day; and (2) stand for forty-five minutes at a time, for approximately four hours per day. Dr. Short also concluded that plaintiff would require periods of walking around during his day, approximately every forty-five minutes, and would require a job that would allow him to take unscheduled breaks and shift positions at will. Dr. Short surmised that plaintiff was limited to rarely lifting and/or carrying twenty pounds, stooping, crouching, squatting, and climbing ladders and stairs.

On August 23, 2012, plaintiff saw physician's assistant Kenneth Rivera, complaining of persistent chronic bilateral knee pain. It was noted that plaintiff had some pain in his left knee upon squatting. Plaintiff was offered, but declined, steroids or injections. Radiological evaluations remained unchanged. On January 8, 2013, plaintiff underwent radiological evaluations on his back which showed multi-level degenerative disc desiccation with disc space narrowing at the C6-7 vertebrae and an area of linear T2 signal abnormality at the C3-4 vertebrae.

Simultaneous to his physical ailments, plaintiff also underwent minimal treatment for mental health issues. On April 28, 2008, Dr. Michael H. Schwartz, Ph.D., noted that plaintiff had sequential and understandable thought content, but presented with a rather passive approach to life. Plaintiff's affect was low key, and sensorium and cognition testing placed him at low-average intelligence. Dr. Schwartz determined that plaintiff could remember work location and procedures, understand and follow simple instructions, and had adequate attention, concentration, and short-term memory. Based on his evaluation, Dr. Schwartz concluded that plaintiff did not suffer from any severe psychiatric symptoms that would prevent him from working, diagnosed him with major depression (single episode/mild intensity), and assigned him a Global Assessment of Functioning ("GAF") score of 60, indicating moderate symptoms.[1]

Plaintiff's visit with Dr. Schwartz a year later resulted in remarkably similar conclusions. Dr. Schwartz again determined that plaintiff had no psychiatric symptoms that would prevent him from working, diagnosed him with an adjustment disorder with depressed mood, and assigned him a GAF score of 55, indicating moderate symptoms. Several months later, in November 2009, plaintiff was prescribed Prozac.

On August 23, 2010, plaintiff underwent a court-ordered mental health evaluation at the Central Kansas Mental Health Center.[2] He was diagnosed with adjustment disorder with anxiety (chronic), relational problems (not otherwise specified), and assigned a GAF score of 57, again indicating moderate symptoms.

On January 5, 2011, plaintiff underwent a Psychiatric Review Technique with state examiner Dr. Joseph Cools, Ph.D. Dr. Cools determined that plaintiff suffered from adjustment disorder with mixed features of anxiety and depression. The examiner also concluded that plaintiff had no functional limitations in any of the following tested areas: (1) activities of daily living; (2) maintaining social functioning; (3) maintaining concentration, persistence, or pace; or (4) episodes of decompensation.

Plaintiff filed for DIB on September 8, 2010, and for SSI on September 16, 2010. In both applications, plaintiff alleged disability beginning November 11, 2007. His claim was denied initially on February 11, 2011, and upon reconsideration on April 22, 2011. Plaintiff timely filed a request for an administrative hearing, which took place on October 3, 2012, before Administrative Law Judge Catherine R. Lazuran. Plaintiff, ...

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