United States District Court, D. Alaska
DECISION AND ORDER
SHARON
L. GLEASON UNITED STATES 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.[1] Mr. Chance later
amended his alleged onset date to January 29,
2014.[2] Mr. Chance has exhausted his
administrative remedies and filed a Complaint seeking relief
from this Court.[3]
On May
7, 2018, Mr. Chance filed an opening brief.[4] The Commissioner
filed an Answer and a brief in opposition to Mr.
Chance’s opening brief.[5] Mr. Chance filed a notice of no
reply on June 19, 2018.[6] Oral argument was not requested and was
not necessary to the Court’s decision. This Court has
jurisdiction to hear an appeal from a final decision of the
Commissioner of Social Security.[7] For the reasons set forth
below, Mr. Chance’s request for relief will be denied.
I.
STANDARD OF REVIEW
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.[8]“Substantial evidence” has been
defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”[9] Such evidence
must be “more than a mere scintilla,” but may be
“less than a preponderance.”[10] In reviewing
the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that
supports and that which detracts from the administrative law
judge (“ALJ”)’s conclusion.[11] If the
evidence is susceptible to more than one rational
interpretation, the ALJ’s conclusion must be
upheld.[12] A reviewing court may only consider the
reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which she
did not rely.”[13] An ALJ’s decision will not be
reversed if it is based on “harmless error,”
meaning that the error “is inconsequential to the
ultimate nondisability determination . . . or that, despite
the legal error, the agency’s path may reasonably be
discerned, even if the agency explains its decision with less
than ideal clarity.”[14]
II.
DETERMINING DISABILITY
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.[15] In addition, SSI may be available to
individuals who are age 65 or older, blind, or disabled, but
who do not have insured status under the Act.[16] Disability is
defined in the Act as follows:
[I]nability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.[17]
The Act
further provides:
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), “work which exists in the national
economy” means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.[18]
The
Commissioner has established a five-step process for
determining disability within the meaning of the
Act.[19] A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing
of disability.[20] If a claimant establishes a prima facie
case, the burden of proof then shifts to the agency at step
five.[21] The Commissioner can meet this burden in
two ways: “(a) by the testimony of a vocational expert
(“VE”), or (b) by reference to the
Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P,
app. 2.”[22] The steps, and the ALJ’s findings
in this case, are as follows:
Step 1. Determine whether the claimant is
involved in “substantial gainful activity.”
The ALJ concluded that Mr. Chance “did not engage
in substantial gainful activity since January 29, 2014, the
alleged onset date.”[23]
Step 2. Determine whether the claimant has a
medically severe impairment or combination of impairments. A
severe impairment significantly limits a claimant’s
physical or mental ability to do basic work activities and
does not consider age, education, or work experience. The
severe impairment or combination of impairments must satisfy
the twelve-month duration requirement. The ALJ determined
that Mr. Chance had the following severe impairments:
“degenerative disk and facet disease of the lumbar
spine, bilateral lumbar pars defects at L5, and history of
right knee chondromalacia (status-post arthroscopic
chondroplasty).” ALJ Hebda determined that although Mr.
Chance had diagnoses of “mild chronic spondylosis and
mild chronic T8 and T9 foreshortening and wedging, mild
degenerative spurring of the right elbow and history of
tendinopathy, hypertension, mild obesity (BMI of less than
32kg/m2), and testosterone deficiency,” none
of those impairments were severe. Additionally, the ALJ
determined that Mr. Chance’s alleged left knee pain was
not a medically determinable impairment.[24]
Step 3. Determine whether any impairment or
combination of impairments is the equivalent of any of the
listed impairments found in 20 C.F.R. pt. 404, subpt. P,
app.1 that are so severe as to preclude substantial gainful
activity. If any such impairment(s) is the equivalent of any
of the listed impairments, and meets the duration
requirement, the claimant is conclusively presumed to be
disabled. If not, the evaluation goes on to the fourth step.
The ALJ determined Mr. Chance did not have an impairment
or combination of impairments that meets or medically equals
the severity of a listed impairment.[25]
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.[26] The ALJ concluded that Mr. Chance
had the RFC to perform light work, but would be additionally
limited to “only 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.”[27]
Step 4. Determine whether the claimant is
capable of performing past relevant work. At this point, the
analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by
the claimant’s RFC. If the claimant can still do his
past relevant work, the claimant is deemed not to be
disabled. Otherwise, the evaluation process moves to the
fifth and final step. The ALJ found that Mr. Chance was
unable to perform any past relevant work.[28]
Step 5. Determine whether the claimant is
able to perform other work in the national economy in view of
his age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the
claimant is considered disabled. Based on the testimony
of the VE, the ALJ concluded that there were jobs that
existed in significant numbers in the national economy
that Mr. Chance could perform, including the positions of
cashier II, storage rental clerk, and order
caller.[29]
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.[30]
III.
PROCEDURAL AND FACTUAL BACKGROUND
Mr.
Chance was born in 1962; he is currently 56 years
old.[31] From approximately September 1997 to
September 2012, he worked as a commercial-industrial
HVAC/refrigeration mechanic.[32] He briefly worked as a HVAC
coordinator/maintenance inspector in January
2014.[33] Mr. Chance initiated his application for
disability benefits on or about March 27, 2014; his amended
onset date is January 29, 2014.[34] On July 31, 2014, the SSA
field office found Mr. Chance not disabled.[35] Mr. Chance
requested an administrative hearing on August 21,
2014.[36] On January 23, 2015, Mr. Chance
testified at a hearing before ALJ Paul Hebda in Anchorage,
Alaska with an attorney. At that hearing, Mr. Chance’s
attorney requested a supplemental hearing prior to the
vocational expert’s testimony.[37] The supplemental hearing
took place on December 22, 2015, at which VE Raymond North
testified.[38] The ALJ issued an unfavorable decision
on January 26, 2016.[39] The Appeals Council denied Mr.
Chance’s request for review on April 19,
2017.[40] Mr. Chance timely appealed to this
Court; he is represented by counsel in this
appeal.[41]
The
Medical and Vocational Records
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.[42] Dr. Prevost also
completed a physician’s report for workers’
compensation on December 20, 2011. She opined that Mr. Chance
should be limited to light duty and needed to “avoid
squatting, kneeling or twist pivot” with his right knee
for approximately one month.[43]
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. D
r. Prevost scheduled Mr. Chance for diagnostic arthroscopic
surgery.[44] Dr. Prevost completed a second
workers’ compensation physician’s report and
opined that Mr. Chance should continue with light duty with
“no changes until surgery.”[45]
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.[46] In a worker’s compensation report,
Dr. Prevost recommended that Mr. Chance work at a desk job
until after his surgery.[47]
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.”[48]
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.[49] Dr. Prevost completed a
physician’s report opining that because Mr. Chance had
reported that no light duty option was available for him with
his employer, he was not released for work at that
time.[50]
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.[51] Dr. Prevost’s physician’s
report stated Mr. Chance was not released for work, as he was
recovering slowly with “weak quads” and was
“developing flexion contracture.”[52]
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.”[53]
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.[54]
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.”[55] She noted no apparent damage to the
cartilage under the knee cap and opined “this is just
one of those unusual cases of anterior knee pain
postoperatively that is probably related more to tight
hamstrings and weak quadriceps than anything else.” On
the workers’ compensation form completed that same day,
Dr. Prevost recommended continued physical therapy. She
released him to work on a light duty option, but noted that
Mr. Chance had verbally reported this option was not
available to him.[56]
From
April 25 to May 25, 2012, Mr. Chance attended additional
physical therapy sessions with PT LePage.[57]
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.”[58] She indicated, “we
are setting a goal that he gets back to his full commercial
refrigeration duties, based on the work descriptions that
were provided to us, in another three months.” On the
workers’ compensation physician form, Dr. Prevost
continued to release Mr. Chance to light duty work only, with
continued physical therapy to achieve work conditioning and
hardening.[59]
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.[60]
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.[61]
On June
18 and June 22, 2012, Mr. Chance saw PT Wellsandt for
physical therapy for his right knee.[62]
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.”[63] She indicated that if Mr.
Chance was unable to return to his prior job within six
months post-operatively (i.e. August 2012), “then order
a permanent partial impairment and recommend return-to-work
cross-training.” She continued to limit him to light
duty with no squatting, kneeling, climbing ladders,
scaffolding, or lifting greater than 20 pounds from the
ground level.[64]
From
June 25 to July 26, 2012, Mr. Chance continued to attend
physical therapy sessions for his right knee at Excel
Physical Therapy.[65]
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.”[66]
From
August 1 to September 6, 2012, Mr. Chance went to Excel
Physical Therapy for his right knee pain.[67]
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.”[68]
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.”[69] Mr. Chance
also had a right knee MRI on September 20, 2012. The MRI
showed a “small defect in cartilage involving the
medial patellar facet” with an “associated soft
tissue change . . .which may represent granulation
tissue” and a “small defect in cartilage
overlying the medial femoral condyle.” The study was
otherwise unremarkable.[70]
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.[71]
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.[72]
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.[73]
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.[74]
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.[75]
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.”[76]
On
November 7, 2012, Mr. Chance saw Raymond Farrell, P.A., a t
OPA . On physical examination he had 90 degrees of motion in
the right knee and no evidence of erythema or
drainage.[77] PA Farrell also completed a disability
work status form opining that Mr. Chance was “totally
disabled,” but able to return to work on December 1,
2012.[78]
From
November 19, 2012 to November 29, 2012, Mr. Chance went to
physical therapy at Health Quest Therapy for his right
knee.[79]
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.[80]
From
December 4, 2012 to December 27, 2012, Mr. Chance continued
physical therapy for his right knee.[81]
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.[82]
Through
January 2013, Mr. Chance went to physical therapy for his
knee at Health Quest Therapy.[83]
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.”[84]
From
February 5 to March 5, 2013, Mr. Chance visited Health Quest
on multiple occasions for physical therapy on his right
knee.[85]
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.”[86]
On
March 8 and March 21, 2013, Mr. Chance went to physical
therapy for his right knee.[87]
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.[88]
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.[89]
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.”[90]
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.”[91]
On
April 11 and April 16, 2013, Mr. Chance went to physical
therapy for his right knee.[92]
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.[93]
From
April 18 to May 9, 2013, Mr. Chance continued to attend
physical therapy for his right knee at Health Quest
Therapy.[94]
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.”[95] Dr. Hall
completed a disability work status form and indicated Mr.
Chance was “totally disabled” for four
weeks.[96]
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.[97] In an addendum to the May 2013
examination, Dr. Bald clarified that “no further
medical or hands-on treatment of any kind” was
reasonable, necessary, or appropriate for Mr. Chance’s
right knee as of May 18, 2013.[98]
On May
31, 2013, Mr. Chance followed up by telephone with Dr. Hall.
Dr. Hall recommended job retraining or Synvisc
injections.[99]
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.[100]
On
August 29, 2013, Mr. Chance followed up with Dr. Parker to
excise a spot on his neck.[101]
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.[102]
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.[103]
On
December 3, 2013, Mr. Chance initiated physical therapy at
Wasilla Physical Therapy for right elbow pain.[104]
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.”[105]
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.[106]
On
January 6, 2014, Mr. Chance saw Alice Huttunen, P.T. at
Wasilla Physical Therapy, for his right elbow.[107]
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.[108] Dr. Brudenell opined that Mr. Chance
was able to return to work “as long as duties are
available without lifting more than 5 pounds with [r]ight
arm.”[109]
It
appears Mr. Chance returned to work for approximately two
weeks on or about January 15, 2014.[110]
The
following is a summary of the medical records after January
29, 2014, the amended alleged onset Dated:
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.”[111]
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 ¶ 4-5 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.[112]
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 ¶ 4-5 from disc disease in the foraminal
area and the apparent impingement of the nerve in the left
foraminal area at ¶ 5-S1 due to potential pars
defect,” and “[l]esser prominent disc bulges
central paracentral L2-3, L3-4 without compromise central
canal.”[113]
On
February 18, 2014, Mr. Chance had a L4-L5 transforaminal
epidural steroid injection.[114]
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.[115] On the same date, Dr. Brudenell opined
that Mr. Chance was “totally disabled” and
“unable to work until further
notice.”[116]
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.[117] Also on March 7, 2014, Mr. Chance saw
Brandy Atkins, DNP, at OPA, on in-house referral by Dr.
Brudenell for “left lower back pain that radiates down
the left leg.” DNP Atkins noted “[n]o symptoms
past the knee,” “no weakness in the legs,”
and “[n]o numbness, tingling, or burning in the
legs.” Mr. Chance’s motor strength testing was
5/5 and symmetric bilaterally, his straight leg raising was
negative, the internal and external rotation of his hips was
intact without pain, and he “was able to transition
from sit to stand without difficulty.” DNP Atkins noted
that the x-rays of the lumbar spine taken that day showed
“a little bit of a retrolisthesis at ¶ 4/5,”
“pars defect at ¶ 5-S1,” and “anterior
osteophytes notable at ¶ 4, L3,” but no evidence
of compression fracture and his hip joints “appear[ed]
okay.” DNP Atkins prescribed Meloxicam 15 mg and Norco
5-325 and refilled his Cyclobenzaprine10 mg prescription. Mr.
Chance request a work status and DNP Atkins indicated she
gave him one “to reflect he is capable of light
duty.”[118]
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.”[119]
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.[120]
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.[121]
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.”[122] Also on May 20, 2014, Mr. Chance
visited James Eule, M.D., at OPA. He reported that a home
TENs unit provided mild back pain relief, that extensive
physical therapy had not helped, and that one epidural
injection provided “100% relief for about a day,”
but did not offer long-term pain relief. On physical
examination, Dr. Eule observed that Mr. Chance was
“visibly uncomfortable on the table, shifting positions
constantly,” but he was “really nontender to
palpation over his lower lumbar spine” and had
“good strength throughout bilateral lower
extremities” and “good range of motion” in
the hips. Dr. Eule diagnosed Mr. Chance with L5 pars fracture
and significant foraminal stenosis on the left at L4-5 and
L5-S1, mildly at L3-4.[123]
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.”[124]
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.[125]
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”).[126]
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.[127]
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.[128]
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.[129]
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.[130]Also on October 28,
2014, Dr. Parker completed a medical statement regarding
physical abilities and limitations. He identified several
diagnoses of Mr. Chance’s back made by other health
care providers. He then opined that Mr. Chance was limited to
standing or sitting for 15 minutes at a time and 60 minutes
total in a work day. Dr. Parker also opined that Mr. Chance
could lift up to 10 pounds frequently, that he could never
bend, stoop, operate a motor vehicle, or work around
dangerous equipment. He indicated that Mr. Chance could
occasionally balance and raise his left arm over shoulder
level; had occasional fine and gross manipulation with the
right hand; frequent fine and gross manipulation with the
left hand; and could frequently raise his right arm over
shoulder level. Dr. Parker opined that Mr. Chance could
frequently tolerate heat and cold, dust, smoke, or fumes, and
noise exposure. He also noted that Mr. Chance would need to
elevate his legs occasionally during an eight-hour work day
and that Mr. Chance’s pain was severe.[131]
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.[132]
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.[133] Also on January 19, 2015, Dr. Parker
completed a disability impairment questionnaire on a form
provided by Mr. Chance’s attorney. He opined that Mr.
Chance was limited to sitting up to one hour in an eight-hour
workday, needed to move around every 15 minutes, and needed
to elevate both legs while sitting. He also indicated that
Mr. Chance was limited to standing or walking less than one
hour each in an eight-hour workday and needed to return to a
seated position every 15 minutes. D r. Parker opined that Mr.
Chance could occasionally lift and carry up to five pounds;
occasionally grasp, turn, and twist objects bilaterally;
occasionally use his hands/fingers for fine manipulations;
and never/rarely use his arms for reaching. He noted that Mr.
Chance would need to take unscheduled breaks every 15 minutes
and would likely be absent from work more than three times a
month due to his impairments or treatment.[134]
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.”[135]
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 ¶ 5-S1 and mild to moderate
stenosis at ¶ 4-5”; 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.[136]
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.[137]
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.[138]
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.[139]
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.[140]
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.[141]
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.[142]
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.[143]
On
November 17, 2015, Mr. Chance received bilateral lumbar facet
injections at ¶ 5-S1 from Dr. Jaconette.[144]
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.[145]
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.”[146]
Hearing
Testimony
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.[147]He also expressed concern that Mr.
Chance was still smoking. The ALJ determined that he would
order a consultative examination by a
“physologist.” ALJ Hebda also allowed Mr. Chance
the option to request a supplemental hearing.[148]
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.[149]
Function
Report
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.[150]
IV.
DISCUSSION
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 ...