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Laws v. Colvin

United States District Court, D. Arizona

March 31, 2014

Raymond Laws, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BRUCE G. MacDONALD, District Judge.

Currently pending before the Court is Plaintiff's Opening Brief (Doc. 29). Defendant filed her response (Doc. 30), and Plaintiff did not reply. Also pending is Plaintiff's Motion to Allow Plaintiff's Opening Brief to Exceed Page Length filed with his Opening Brief (Doc. 29). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge has received the written consent of both parties, and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. The Court takes judicial notice that Michael J. Astrue is no longer Commissioner of the Social Security Administration ("SSA"). The Court will substitute the new Acting Commissioner of the SSA, Carolyn W. Colvin, as Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

I. BACKGROUND

A. Procedural History

On July 28, 2008, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") alleging disability as of June 7, 2006 due to degenerative joint disease of the lumbar and cervical spine and fracture of the left upper extremity.[1] See Administrative Record ("AR") at 24, 26, 102, 104, 117, 124, 167. The Social Security Administration ("SSA") denied this application on October 16, 2008. Id. at 79. On December 7, 2008, Plaintiff filed a request for reconsideration, and SSA subsequently denied Plaintiff's request. Id. at 83-86. On June 22, 2009, Plaintiff filed his request for hearing. Id. at 94. On August 25, 2010, a hearing was held before Administrative Law Judge ("ALJ") Norman R. Buls. Id. at 65. The ALJ issued an unfavorable decision on December 15, 2010. AR at 21-33. Plaintiff requested review of the ALJ's decision by the Appeals Council, and on July 18, 2012, review was denied. Id. at 1-3. On September 21, 2012, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was forty-four (44) years old at the time of the administrative hearing, and forty (40) at the time of the alleged onset of his disability. AR at 69, 104, 124, 132, 147, 167. Plaintiff earned high school equivalency by passing his GED exam. Id. at 70, 167. Prior to his alleged disability, was a truck driver in the military. Id. at 72, 118, 150, 167. Plaintiff also worked for Waste Management Resources as a truck driver and trash collector. Id. at 72-73, 118, 128. Plaintiff left Waste Management, because he was recalled to active duty. Id. at 73.

At the administrative hearing, Plaintiff testified that he currently lives with his daughter and her boyfriend, and his two grandchildren. AR at 70. Additionally, Plaintiff has two (2) minor children aged eight (8) and twelve (12). Id. at 70. Plaintiff further testified that he had been dropped off at the hearing by a friend, although he does have a driver's licence and owns a vehicle. Id. at 70-71. Plaintiff testified that he no longer has his commercial driver's licence. Id.

Plaintiff testified that he last worked in August 2004, when he "returned to the military." Id. at 71. Plaintiff further testified that he retired from the military in April or May of 2006. AR at 71-72. Plaintiff testified that while in the military he was a truck driver. Id. at 72. His retirement from the military resulted from a fall "out of a military vehicle on a training mission." Id. at 72. Plaintiff testified that after the fall, he "started dropping my rifle, and I actually had incidents of passing out[.]" Id. Plaintiff further testified that "from there things kind of went downhill for [him]. [He] started having a lot of problems on my left shoulder[, ] [including a] bent [] clavicle plate[, ] [and]... a lot of problem[s] on [his] left hand." Id.

Plaintiff testified that since retirement he has "a lot of trouble sleeping." AR at 73. Plaintiff further testified that his sleep pattern is very "erratic" and that he is only able to sleep "two or three hours at a time." Id. Additionally, Plaintiff testified that he has a lot of trouble with his left hand, and cannot lift anything. Id. at 73. Plaintiff also testified that he has been falling a lot, and now walks with a cane. Id. Plaintiff further testified that "they" are looking into why he falls, and that "[t]hey don't know whether I pass out, or whether my legs give out on me[.]" Id. Plaintiff testified that he cannot work at a table height, because it causes his arms to go numb, and he develops severe headaches. AR at 73-74. Plaintiff also testified that he is "on high levels of morphine, and other medications." Id. at 74.

Plaintiff described his usually morning, stating that he usually wakes up between four (4) and six (6) in the morning. Id. at 74. "Before [he] get[s] out of bed, [he] start[s] some stretches that the doctor has put [him] on to relieve the tension." Id. Once up, Plaintiff testified that he has a cup of coffee, watches a little bit of television, "and then plan[s] [his] day from there." Id.

Plaintiff testified that his daughter does his laundry, and either his ex-girlfriend does his grocery shopping or he has groceries delivered. AR at 74. Plaintiff further testified that he does not cook anymore, because it is "too dangerous in the kitchen." Id. at 75. He previously "dropped a whole pan of pinto beans in [sic] the kitchen floor, and [] actually burnt [his] feet really bad[.]" Id. Plaintiff testified that he tries to go on the computer, but that "it gives [him] a lot of eyestrain, and [he] can't seem to find a real comfortable position." Id. Plaintiff further testified that he does not have hobbies "any more." Id. at 75.

On November 30, 2005, Plaintiff was seen by Donna R. Rojas, case manager/medical holdover liaison, at Lackland Air Force Base. AR at 322. Plaintiff was being seen "for further medical evaluation for possible MEB."[2] Id. Plaintiff stated that he had been in an accident in September 2004, and this his primary concern is his pain which he rates a six (6) out of ten (10). Id. Plaintiff indicated that the pain was from the middle of his back up to his neck, as well as his lower back and tailbone. Id. Plaintiff further stated that he has a wife and six (6) children in Arizona. Id. Ms. Rojas scheduled Plaintiff for a consult with Dr. Unser. Id. Plaintiff's active medications included two Cyclobenzaprine HCl prescriptions, Nortriptyline HCl, Ibuprofen, and Gabapentin. AR at 322.

On December 1, 2005, Plaintiff was seen by Stanley H. Unser, M.D. regarding his lower back pain and left cervical radiculopathy since his fall from a truck at on September 16, 2004. Id. at 321. Dr. Unser also noted Plaintiff had "[c]hronic CP since pleural adhesion procedure for pneumothorax in 1995 with mild restrictive disease on PFT no duty limiting[, ]... [m]ild pericardial effusion Sep 05 without follow up[, ] [and]... small lession [sic] on Spleen[.]" Id. Plaintiff was scheduled for neurology and cardiology consults. Id. Plaintiff was seen on this same date by Cynthia Krueger, RN for a check of his vital signs for the medical board. Id. at 320. Plaintiff's listed problems were pericarditis effusive, cervical radiculopathy C5, and lumbago.[3] AR at 320. On December 2, 2005, Plaintiff was seen by Huong-Trinh Nguyen, a staff optometrist, for a "vision examination as part of a military physical." Id. at 319. Plaintiff was seen by Eduardo J. Perez on the same date for magnetic resonance imaging ("MRI") of his spine. Id. at 317-18. Dr. Perez documented that Plaintiff's primary complaint was "[u]pper thoracic cervical pain with left shoulder weakness" after a fall off of a military truck. Id. at 317. Dr. Perez noted "progressive symptomatology inspite [sic] of physical therapy." Id. Plaintiff "also complain[ed] of left arm numbness in ulnar distribution with droping [sic] of object but that is slowly improving." AR at 317. Plaintiff rated his pain six (6) out of ten (10). Id. Dr. Perez noted that Plaintiff's cervical spine motion, including flexion and extension were abnormal. Id. at 318. Further, cervical spine pain was elicited by motion. Id. Dr. Perez did not note any tenderness on palpation or instability. Id. "A distraction test of the cervical spine was negative." AR at 318. Foraminal compression test did not cause pain to radiate. Id. The cervical MRI did not show "acute herniation or spinal or foraminal stenosis related to his symptoms[, ] [and]... disk height [was] well conserved." Id. at 318. Dr. Perez stated that Plaintiff's "presentation is a combination of cervicalgia and upper back musculoskeletal complaints." Id. Plaintiff's lumbar spine MRI showed "desecation [sic] of L5S1 with conservation of height and no compressive lesions." Id. Dr. Perez stated that Plaintiff's presentation "favors" a diagnosis of cubital tunnel syndrome on the left side; "however[, ] this is masked by the severity of his other complaints." AR at 318. Plaintiff was released with work/duty limitations. Id. On December 5, 2005, Plaintiff received his flu shot. Id. at 315-16. On December 6, 2005, Plaintiff received a hearing test for the MEB. Id. at 314. The test was given, and Plaintiff was released without limitations. Id. On December 7, 2005, Plaintiff was seen by Family Nurse Practitioner ("FNP") Thomas S. Clark, F.N.P. regarding his neck and back pain for the MEB. AR at 310. Plaintiff also needed refills of his prescriptions. Id. at 310, 311. Plaintiff reported his pain as a four (4) out of ten (10). Id. at 310. Further, his upper back pain was "well control[led] with medication." Id. at 310. FNP Clark noted "[n]ormal movement of all extremities[, ]" but "[c]ervical spine showed abnormalities[, ] [p]ain when moving in any direction." Id. at 313. Further, Plaintiff's "motor exam demonstrated no dysfunction" and his balance was "normal." AR at 313. FNP Clark noted severe cervicalgia, and refilled Plaintiff's Oxycodone and Flexeril prescriptions; benign essential hypertension, which is stable and controlled; and chronic constipation, induced by narcotic therapy. Id. Plaintiff was released without limitations. Id. Later the same date, Plaintiff called for a telephone consultation, stating that FNP Clark believed the "EJP note" was incomplete, and that Plaintiff "need[ed] to get more information added per Dr. Clark." Id. at 308. Dr. Perez reviewed the note and confirmed that it was complete. Id. at 309.

On January 3, 2006, Plaintiff called for a prescription refill on his Oxycontin, Oxycodone, and Flexeril. AR at 306. FNP Michael F. Daly reviewed the prescriptions and instructed staff to determine if Plaintiff had a "sole prescriber." Id. at 307. A refill was ordered for the Oxycodone (Oxycontin) as it was previously written; however, FNP Daley noted that Plaintiff was given a ninety (90) day supply of Flexeril, and if he is out he is taking it incorrectly. Id. On the same date, Plaintiff had a consultation with Case Manager Rojas, regarding medication and treatment. Id. at 304. Consultations with general surgery, pain clinic and cardiology were also scheduled for Plaintiff. Id. at 305. On January 10, 2006, Plaintiff was seen by Garrett Shawn Lynchard, M.D. for a cardiology consult. AR at 300. Dr. Lynchard noted "chronic daily chest pain increased with exertion." Id. A Transthoracic Echocardiogram ("ECG") was performed. Id. at 302. Plaintiff's "[l]eft ventricular systolic function was at the lower limits of normal." Id. Additionally, Plaintiff's lab results indicated high total cholesterol, high LDL cholesterol, and low potassium. Id. at 302. Dr. Lynchard noted Plaintiff's "abnormal ECG and significant [coronary artery disease] [("]CAD[")] risk factors. AR at 303. Dr. Lynchard recommended further evaluation, and beginning statin therapy. Id. On January 11, 2006 Plaintiff was seen by FNP Daley regarding his high cholesterol, chronic abdominal pain, and claustrophobia and upcoming MRI. Id. at 296-98. Plaintiff reported that "he is being followed in the pain clinic and is getting injections" for his chronic back pain. Id. at 297. Plaintiff further reported abdominal pain on the left side, which FNP Daley also noted on palpation. Id. at 298. Plaintiff was given a prescription for Valium to take prior to his scheduled MRI. AR at 299. On the same date, Plaintiff reported to Case Manager Rojas that he had been seen at the Pain Management clinic and received "7 shots." Id. at 295. Plaintiff further stated that the injections made him sore. Id. Plaintiff also stated that Percocet, a new medication, makes him nauseated. Id. at 295. On January 12, 2006, Plaintiff was seen by Nhat C. Nguyen-Minh, M.D. regarding left abdominal pain, and evaluation for MEB. Id. at 291-93. Plaintiff reported his abdominal pain as present for nine (9) months, and constant, dull and mild in quality. AR at 292. Dr. Nguyen-Minh notes that "[p]atient is a poor historian, does not remember the circumstances of his many surgeries, and has no medical records with him." Id. Plaintiff underwent an MRI which showed a rounded lesion in the upper tip of the spleen. Id. at 293. Ernesto Torres, M.D. stated that the "[d]ifferential diagnosis include[d] epithelial vs. post traumatic cyst." Id. Further, "[t]he spleen is not enlarged and otherwise demonstrates homogeneous signal intensity in all sequences." Id. Accordingly, Steven J. Hudak, M.D. stated that Plaintiff's "[s]pleen finding [was] benign, and unrelated to pain." AR at 293. Further, there were "[n]o surgical indications." Id. Plaintiff was released without limitations. Id. On January 13, 2006, Plaintiff was seen by Elizabeth A. Grossart, M.D. on referral from neurosurgery for his cervicalgia and left arm cubital tunnel syndrome. Id. at 285-90. Plaintiff complained of "tenderness at funny bone', [sic] [and] constant tingling at L[eft] hand digits 4, 5." Id. at 286. Plaintiff also complained of "L[eft] hand opening up' and dropping things." Id. at 286. Plaintiff reports that this began occurring after his fall from a military truck. Id. Plaintiff had his first cervical injection on January 6, 2006 and reported it "made [his] L[eft] thumb go numb[, ] but that is now resolved." Id. Dr. Grossart noted that pain was elicited on flexion and extension of the elbow. The left elbow had "[t]enderness on palpation of the olecranon bursa with no swelling[, ] and [n]o tenderness on palpation over the ulnar nerve." Id. No other tenderness was noted. Id. No weakness or muscle atrophy was found. Id. Dr. Grossart performed nerve conduction studies. AR at 286-89. Dr. Grossart reported a normal study with "[n]o electrodiagnositc evidence of ulnar neuropathy at the elbow, forearm, or wrist." Id. at 286. Accordingly, Dr. Grossart found "[n]o electrodiagnostic evidence of ulnar neuropathy... or cervical radiculopathy." Id. She recommended an orthopedics consult for possible low-grade bursitis. Id. On January 17, 2006, Case Manager Rojas saw Plaintiff, who reported that he was "in a lot of pain today" and that it was "off the charts." Id. at 283-84. Plaintiff was released with work/duty limitations. AR at 284. Later the same date, Plaintiff was seen by Patricia S. Manship, RD/LD regarding his hyperlipidemia. Id. at 280-82. Ms. Manship reported Plaintiff could benefit from nutritional counseling, and released him without limitation. Id. at 281-82.

On February 9, 2006, Plaintiff was seen by Connie A. Patterson, FNP regarding his blood pressure. Id. at 275-79. Plaintiff reported having profuse sweating, headaches and hot flashes for a week, and having "run out of pain meds[.]" Id. at 276-77. Plaintiff requested refills of his Flexeril and Oxycodone. AR at 276-77. FNP Patterson noted "[t]enderness on palpation of both trapezius muscles[, ]" as well as "[t]enderness on palpation of the rhomboid muscles on both sides[, ]" with muscle spasms. Id. at 278. FNP Patterson further reported cervical pain elicited by bilateral motion, including flexion and extension, although the "[c]ervical spine showed full range of motion." Id. FNP Patterson also noted spasms in the sternocleidomastoid and paraspinal muscles bilaterally. Id. at 278. FNP Patterson refilled Plaintiff's pain medication, and noted that his blood pressure elevation was "probably secondary to pain." Id. at 279. Plaintiff was instructed to follow up with his primary care manager. AR at 279. On February 28, 2006, Plaintiff requested that Case Manager Rojas schedule an appointment for him regarding his acid reflux. Id. at 273-74.

On March 2, 2006, Plaintiff was seen by Paul Lewis, F.N.P., for his acid reflux. Id. at 269-72. Plaintiff complained of gastroesophageal reflux disease ("GERD"), which he was treating with Prilosec; however, this was no longer effective. Id. at 270. Plaintiff further reported having had an esophagogastroduodenoscopy ("EGD") which showed esophageal ulcers and a hiatal hernia. Id. Plaintiff further reported that he had "regular nausea with about weekly vomiting[.]" AR at 278. After evaluation, Plaintiff was referred to Gastroenterology for follow-up, and prescribed Aciphex. Id. at 272. On March 6, 2006, Dr. Lynchard called Plaintiff to inform him of his abnormal MIBI stress test results. Id. at 267-68. Dr. Lynchard offered cardiac catheterization testing, which Plaintiff wished to think about. Id. at 268. On March 7, 2006, Plaintiff contacted Case Manager Rojas regarding scheduling the cardiac catheterization. Id. at 265-66. On March 21, 2006, Plaintiff met with Case Manager Rojas. AR at 263-64. Plaintiff stated that "he is doing well." Id. Plaintiff also reported that the "cold weather has caused his back to be a bit more painful and act up[.]'" Id. at 264. Plaintiff and Case Manager Rojas discussed his upcoming appointment with the pain management clinic. Id. Plaintiff stated that if "the next [epidural steroid injection] [("]ESI[")] does not help he probably will not have additional ESI's [sic]." Id. On March 28, 2006, Plaintiff saw Dr. Lynchard for a follow-up and cardiac catheterization. AR at 258-62. Plaintiff reported being pain free. Id. at 259. Dr. Lynchard performed a myocardial perfusion scan which showed a "small, mild fixed anterior wall defect" and "medium, mild lateral wall defect extending from the base to the mid slices." Id. at 261-62. Dr. Lynchard reported "[l]ateral wall ischemia" and "[n]ormal LV function on resting gated analysis[.]" Id. Dr. Lynchard further discussed cardiac catheterization with Plaintiff. Id. at 262.

On April 4, 2006, Plaintiff met with Case Manager Rojas, and discussed "getting restless waiting here as near the end of MEB." AR at 256-57. Plaintiff confirmed appointment for cardiac catheterization. Id. at 257. On April 5, 2006, Plaintiff underwent a left heart catheterization and coronary angiography. Id. at 227-28; see also AR at 200-15, 219-22. "there were no left ventricular regional wall motion abnormalities [and]... no angiographic evidence for coronary artery disease." AR at 227-28. Plaintiff's electrocardiograms performed on April 4 and 5, 2006 both indicated normal sinus rhythm. Id. at 217-18. On April 11, 2006, Plaintiff again met with Case Manager Rojas. Id. at 254-55. Plaintiff reported that he was "doing well" and they discussed pending appointments with Gastroenterology and Cardiology. Id. at 255. On April 13, 2006, Plaintiff met with Carlos E. Angueira, M.D. regarding his GERD. Id. at 252-53. Dr. Angueira switched Plaintiff to Prilosec and instructed him to return in one month. AR at 253. "If patient is still symptomatic at that time, we will proceed with repeat EGD." Id. On April 17, 2006, Plaintiff was seen by Terris M. Thompson, F.N.P. for a follow-up regarding his cardiac catheterization incision. Id. at 248-51. Plaintiff also reported needing a refill of his medications for hyperlipidemia, chronic pain, hypertension and constipation. Id. at 249, 251. Plaintiff reported being pain free. Id. at 249. No abnormalities with the incision were found. AR at 250. On April 18, 2006, Plaintiff was seen by Nurse Krueger for a blood pressure check, scheduled to be the first for three (3). Id. at 246-47. Plaintiff reported being pain free. Id. at 247. Plaintiff's blood pressure was 134/83 in the right arm, and 137/83 in the left. Id. On April 21, 2006, Plaintiff saw Nurse Krueger for his third day blood pressure check. Id. at 244-45. Plaintiff's left arm blood pressure was 149/95, and right arm 135/89. AR at 245. On April 24, 2006, Plaintiff was seen by Norton A. Stuart, M.D. in the Pain Management Clinic. Id. at 242-43. Dr. Stuart noted "[p]rogressive symptomology inspite [sic] of physical therapy." Id. at 242. Dr. Stuart further noted that Plaintiff "continue[d] to have significant L[eft] subscapular pain despite [trigger point injections] [("]TPI[")] × 5 with local/steroids/botox." Id. Plaintiff "decline[d] any more TPI and would like alternative pain management modalities." Id. Plaintiff rated his pain as four (4) out of ten (10). AR at 242. Upon examination, Dr. Stuart noted that Plaintiff's neck "[d]emonstrated a decrease in suppleness." Id. Dr. Stuart further noted "[f]lexion produced tingling down the spine/arms." Id. Additionally, cervical spine flexion, extension, and bilateral motion produced pain." Id. Dr. Stuart noted that the cervical spine "showed a full range of motion" and "no instability." Id. Neck and cervical spine strength was reduced, and "[s]houlder weakness was observed." AR at 243. "A foraminal compression test did not cause pain to radiate to the arm" either on the same or opposite side to which the head was rotated. Id. at 242. On April 25, 2006, Plaintiff met with Case Manager Rojas and "denie[d] any issues at this time." Id. at 240-41.

On May 1, 2006, Plaintiff was seen by Curtis W. House, P.A., for back pain and edema in feet. Id. at 236-39. Plaintiff reported the pain in his mid or upper back as six(6) out of ten (10), with ten (10) being the worst possible pain. Id. at 237. Plaintiff further reported that the edema in his lower extremities had been occurring two (2) to three (3) times per year "for the last few years." AR at 237. Additionally, Plaintiff had "some tingling" and complained that pain management had recently changed his medications to a sustained release form, which did not work as well. Id. at 237. Plaintiff did not have any pain or tenderness either on palpation or movement of his ankles. Id. at 238. An ECG was performed with "[n]onspecific T wave abnormality." Id. Plaintiff was directed to follow up with either the pain management clinic or his primary care manager for medication adjustment. Id. On May 2, 2006, Plaintiff was seen by Andrew S. Fletcher, M.D. regarding his mid to low back pain. AR at 231-35. Dr. Fletcher reported that Plaintiff was seeking pain medication for his low back pain. Id. at 233. Dr. Fletcher further noted that Plaintiff's hypertension was not well controlled. Id. This has resulted in "mild dependent edema lately, which resolved with elevation of lower extremities." Id. Dr. Fletcher reported that Plaintiff's cervical spine was tender to palpation bilaterally, and the paraspinal muscles were in mild spasm. Id. at 234. Dr. Fletcher further reported "[p]ain with movement in all directions" and that he was "unable to elicit radicular" signs and symptoms to Plaintiff's upper extremity. AR at 234. Dr. Fletcher noted that Plaintiff's lumbosacral spine exhibited a limited range of motion on flexion and twisting at the waist. Id. "No facet load pain [was] noted." Id. Plaintiff stated that "pain with motion radiates down legs in sciatic distribution." Id. Dr. Fletcher advised Plaintiff to follow up with the pain management clinic regarding his medication. Id. at 235. Dr. Fletcher also offered Toradol IM, which Plaintiff refused. Id. Dr. Fletcher prescribed Hydrochlorothiazide ("HCTZ") for Plaintiff's hypertension and edema. AR at 235. On May 9, 2006, Plaintiff met with Case Manager Rojas. Id. at 229-30. Plaintiff was scheduled for an appointment in the MEB office regarding his Physical Evaluation Board ("PEB") appeal. Id. at 230. On May 16, 2006, Plaintiff was seen by Dr. Lynchard. Id. at 225-28. The record indicates that Plaintiff's "case manager scheduled another follow up for unclear reasons." Id. at 226. Further, "Plaintiff [was] without significnat [sic] complaint today[.]" AR at 226. Plaintiff was determined to be non-cardiac, with no further cardiology follow up required. Id. at 228. On May 18, 2006, Plaintiff was seen by FNP Daley for a medication request. Id. at 223-24. Plaintiff reported that he was "getting out of the military and moving to Arizona and does not want to have an interruption in medications." Id. at 223. Plaintiff's active list of medications indicated refills available, so no additional prescriptions were necessary. Id. at 223-24.

On June 19, 2006, Plaintiff was seen by Vera M. Stauth, L.P.N. at Southern Arizona Veterans Affairs Health Care System ("SAVAHCS") in Tucson, Arizona. AR at 617-18. Plaintiff was screened for depression, which was negative. Id. at 617. Plaintiff indicated that he was "a lifetime non-tobacco user[;]" however, his records from Brooke Army Medical Center consistently indicate that he was nicotine dependent. Id. at 225, 229, 231, 236, 240, 244, 246, 248, 252, 254, 256, 258, 262, 263, 265, 267, 269, 273, 275, 279, 280, 283, 285, 291, 296, 300, 303, 304, 306, 308, 313. On the same date, Plaintiff was seen by Denise M. Rhoads, M.S.N., F.N.P.-C for a primary care intake examination. Id. at 608-17. Plaintiff had been medically discharged from the military, and wished to establish primary care at SAVAHCS. Id. at 608. FNP Rhoads noted that Plaintiff "[c]ontinues with neck, and lumbar pain." AR at 608. Additionally, she reported that Plaintiff had daily "[h]eadaches, secondary to spinal injury." Id. FNP Rhoads further noted Plaintiff's "[s]evere, chronic neck, low back pain with radicular symptoms to bilateral arms, left leg entire length." Id. at 610. Upon examination, FNP Rhoads noted diminished sensation in Plaintiff's left hand, with grip strength 3/5 on the left and 4/5 on the right. Id. at 611. Regarding leg strength, FNP Rhoads reported 3/5 on the left and 4/5 on the right. Id. Additionally, she noted that Plaintiff's neck range of motion was diminished with pain, and that his cervical and lumbar spine were tender to palpation. AR at 611. FNP Rhoads further noted that the range of motion of all other joints were grossly within normal limits, and that Plaintiff "change[d] position on [the] table slowly and with apparent discomfort." Id. FNP Rhoads changed Plaintiff's medication list by removing Atenolol and adding Lisinopril, changing Oxycontin to Oramorph, discontinuing Nortriptyline, increasing Gabapentin, and replacing Albuterol with Levalbuterol. Id. at 612-13. Plaintiff was also counseled regarding prescriptions and procedures on refills. Id. at 606-08. On June 20, 2006, Plaintiff was seen in the pain clinic. Id. at 604-06. Plaintiff reported that he is not currently married, but had met a new girlfriend, whom he is still with, prior to reactivation. AR at 604. Plaintiff further reported that he had sole custody of seven (7) children, five (5) natural and two (2) adopted. Id. Plaintiff reported his pain level as a four (4) out of ten (10), with ten (10) being the worst pain. Id. at 605. Plaintiff reported that trigger point injections "helped some" and that he had Botox injections once a month for three (3) months, which "would last 2 weeks[, ]" but that he "stopped because shots 4-6 did not work." Id. Plaintiff further reported that he had not tried epidural steroid injections, because they had not been offered. Id. at 605. On the same date, FNP Rhoads reported that Plaintiff's laboratory work were normal with a small elevation in one of his liver enzymes, as well as blood glucose level. AR at 603-04. On June 27, 2006, Plaintiff was seen by Gifford Hoyer, R.Ph. for a review of his past pain medications. Id. at 595-600. Dr. Hoyer noted that Plaintiff's "[d]escription of pain indicates possible muscle involvement from sub scapula that progresses to arm and neck[;] [however, ] Patient[s] descriptions of regions involved do not specificaly [sic] follow dermatome patterns and seem to primarily start with muscle pain below scapula." Id. at 598. Plaintiff further reported "low back pain that also seems to have involvement of muscles across low back." Id. Dr. Hoyer noted that Plaintiff was "not doing any consistent exercises, stretching or strengthening." Id. Dr. Hoyer also counseled Plaintiff "regarding taking medications as prescribed[, ]" as Plaintiff was increasing doses of various pain medications. AR at 599. On June 29, 2006, FNP Rhoads added Salsalate to Plaintiff's medications. Id. at 602.

On July 21, 2006, Plaintiff was seen by Gabriele-Monika Koschorke, M.D. regarding his chronic pain. Id. 587-95. Dr. Koschorke noted that Plaintiff was "in no acute distress." Id. at 590. Dr. Koschorke noted Plaintiff's upper and lower extremity strength "5/5 except for distal left upper extreemity [sic] 4/5" and "4/5 on left" lower extremity. Id. at 591. Dr. Koschorke further noted decreased sensation "over posterior aspect of left forearm and digit 1 and 5." Id. Additionally, she reported "some tightness in neck muscles on left side only[, ] very painful to palpation over area of hyperalgesia nd [sic] allodynia, otherwise [within normal limits], except for some pain on left elbow." AR at 591. Dr. Koschorke observed pain in Plaintiff's cervical spine during flexion and extension, with midback pain in all ranges of the lumbar spine. Id. Plaintiff also showed increased pain in his thoracic spine on rotation to the right. Id. Dr. Koschorke also noted increased pain in chestwall with left shoulder motion. Id. Plaintiff's gait was reported as "very slow using cane[.]" Id. On July 31, 2006, Plaintiff did not appear for his neurology appointment with Amir Akhter, M.D. Id. at 586.

On August 28, 2006, a female caller requested the delivery status of medications, "stating [Patient] is in severe pain, unable to get out of bed." AR at 586. On August 29, 2006, Plaintiff "presented initially for out of pain medication/unable to walk (secondary to pain)." Id. at 582. The record indicates that "after wait of appro[ximately] 30 minutes while more acutely ill [patients] were being triaged, wife informed [the administrator on duty] that now [Patient] was experiencing chest pain." Id. Christopher J. Taras, R.N. noted that Plaintiff was "somewhat withdrawn and makes no eye contact during speech[, ] and state[d] he has had chest pain now, in addition to chronic back pain, for which he was taking morphine[.]" Id. Plaintiff reported his pain as an eight (8) out of ten (10), with ten (10) being the worst pain. AR at 581. Plaintiff further reported that "he exhausted his morphine supply a few days ago[, ] [and] this morning he developed anterior chest pain which is in constant." Id. at 579. Plaintiff's pain was "nonpleuritic and not influenced by movement." Id. Further, Plaintiff "remember[ed] a similar episode while in active duty prompting a coring angiogram but he does not remember the results of that study." Id. Plaintiff's "[l]ecture cardiogram shows sinus rhythm with diffuse T-wave inversions across precordium and inferiorly" and laboratory results are noted as unremarkable. Id. at 580. Plaintiff "received nitroglycerine without improvement, followed by morphine for his back pain." AR at 580-81. Plaintiff was admitted for further evaluation. Id. at 353-55, 568-81. Plaintiff described his pain as a four (4) out of ten (10), with ten (10) as the worst pain. Id. at 569. Plaintiff later reported that his chest pain has ranged from four (4) to six (6) out of ten (10), with ten (10) as the worst pain, for approximately one (1) week, but that he "felt that it was stable and would resolve until this [morning] when the pain was worse and he brought himself into the LSU." Id. at 565. Plaintiff further reported headaches and blurry vision for approximately one (1) week. Id. at 566. Ron K. Lord, M.D. noted "[s]ome EKG changes" and a clean cardiac catheterization three (3) months prior. AR at 567. Plaintiff also had a single view chest x-ray which indicated "[b]lunting of the left costophrenic angle... of indeterminate chronicity." Id. at 335. On August 30, 2006, Margo Nugent, LCSW spoke with Plaintiff, who reported that he lived "with his [significant other] and 7 children (ranging in age from 7 months to 19) in a mobile home in Tucson." Id. at 559. "Prior to this admission, vet reports he was able to manage his [activities of daily living]... without assistance, though he has trouble driving. Id. William G. Ziarnik, M.D. noted Plaintiff's "prior [history of] idiopathic pericarditis' and recurrent L[eft] pleural effusion/pleruodesis" with current "diffuse EKG changes[.]" Id. at 556. Plaintiff had another chest x-ray with both posteroanterior and lateral views. Id. at 334-35. Kim Wilson, M.D. reviewed Plaintiff's films and reported that "[t]he cardiac silhouette does have a rounded appearance, [but] is within normal limits in size." Id. at 335. Plaintiff was treated with Tylenol for his headache and morphine for his right shoulder pain, which he described as seven (7) out of ten (10), with ten (10) as the worst pain. AR at 552-53. Plaintiff's cardiac rhythm was reported as "normal." Id. at 554. On August 31, 2006, Charles D. Deakins, M.D. noted that Plaintiff "report[ed] episode of chest pain at 02:00 today, but says it then moved to his abdomen so he decided it was gas." Id. at 541. Plaintiff "also report[ed] pain in multiple other areas primarily his neck and shoulders." Id. Pericarditis was suspected, and a myocardial infarction ruled out. Id. at 544. On this same date, Kyaw K. Swe, M.D. evaluated Plaintiff for a rheumatology consult. AR at 389-91, 538-41. Dr. Swe stated that Plaintiff "does not have symptoms and signs to suggest autoimmune rheumatic diseases like RA/lupus/scleroderma/vasculitis." Id. at 391, 541. Dr. Swe opined that "[c]linical suspicion of autoimmune rheumatic diseases is low at present." Id. Accordingly a "full rheumatological work up is not needed at this time[.]" Id. On this same date, Plaintiff described his pain to hospital staff as a five (5) out of ten (10), with ten (10) as the worst pain. Id. at 535. Plaintiff was also eating normally. AR at 534. Also on this date, Mark W. Sharon, M.D. analyzed Plaintiff's ECG which showed "[n]ormal sinus rhythm" and "[n]o pericardial effusion[.]" Id. at 393, 533. Dr. Sharon noted that "[t]here is equivocal thickening of the mitral and aortic valve leaflets, but otherwise the study is unremarkable." Id. Further, there was "no aortic insufficiency" and unremarkable Doppler study, "except for trivial mitral regurgitation and a normal mitral valve inflow pattern[.]" Id. at 393, 533. Dr. Sharon concluded that the was "[n]ormal LV/RV systolic function and [n]o pericardial effusion." Id. at 393, 534; see AR at 512.

On September 1, 2006, Plaintiff described his pain as four (4) out of ten (10), with ten (10) as the worst pain. AR at 529. Later this same date, Plaintiff's pain was noted as five (5) out of ten (10). Id. at 526. Plaintiff again reported some chest pain, which decreased to zero (0) in approximately an hour without palpitations or shortness of breath. Id. at 515. Plaintiff was discharged from the hospital. Id. at 515-25. On September 3, 2006, Troy L. Allen, RN read Plaintiff's TB test, which was negative. Id. at 515. On September 5, 2006, Plaintiff called to follow-up after his inpatient stay. AR at 514-15. On September 8, 2006, Plaintiff had a follow-up consultation with Deborah M. Lindsly, M.D., as well as a Pharmacology consult. Id. at 510-14. Dr. Lindsly noted that Plaintiff was "sitting stiffly in chair, moves carefully protecting back[.]" Id. at 512. On September 12, 2006, Dr. Lindsly notified Plaintiff that his laboratory results "show[ed] a mild anemia with no apparent cause." Id. at 510. On September 19, Plaintiff was seen in the Pain Clinic. Id. at 508-10. Plaintiff reported that "[h]e enjoys completing stretches and providing care for his children." AR at 508. Plaintiff described his pain as "[r]adiating neck pain, shoulder pain and low back pain." Id. He stated that his pain ranges from three (3) to ten (10) on a scale of one (1) to ten (10), with ten (10) as the worst pain. Id. at 509. Plaintiff's posture was described as "slighting [sic] kyphotic[, ] [m]oves with guarded posture[.]" Id. Plaintiff was "inhibited with range of motion[, ]" but with normal gait. Id. Manual muscle testing was reported as 4+5/5. Id. On September 21, 2006, Plaintiff was seen by Julian Ballesteros, M.D. for trigger point injections. AR at 507. Dr. Ballesteros reported that "Patient had prompt relief[, ] pain relief." Id. at 508. Dr. Ballesteros further reported that "Patient walked out with not [sic] problems." Id. On November 30, 2006, Dr. Ballesteros noted that Plaintiff's previous trigger point injections "allowed him to have pain relief for 3 weeks after had pain back but last week has had not [sic] pain, patient prefers to have no [sic] TPIs today, he will call when really ned [sic] the TPIs." Id. at 501.

On December 29, 2006, Plaintiff was seen by Sharon Farrish, A.N.P. for a Compensation and Pension general medical examination. Id. at 487-500. Plaintiff reported unemployment since May 2006. AR at 488. NP Farrish noted that Plaintiff was not using an assistive device. Id. at 490. Regarding his lumbar and cervical spine pain, Plaintiff reported "[p]ain in both neck and back with radiation to left shoulder[, ] [and] [n]o radiation to legs." Id. Plaintiff further reported that its effects on usual daily activities were severe for chores, shopping exercise, sports, recreation, traveling, and bathing; moderate for dressing, toileting, and grooming; and none for feeding. Id. Further, Plaintiff reported that this pain has resulted in his unemployment. Id. Regarding his left elbow pain, Plaintiff reports that its effects on usual daily activities is severe for sports; moderate for chores, shopping, exercise, recreation, traveling, bathing, dressing, toileting, and grooming; and none for feeding. Id. at 491. Plaintiff also attributes his unemployment to this pain. AR at 491. Regarding his left shoulder pain, Plaintiff reports its effects on his usual daily activities is severe for exercise, sports, and recreation; moderate for chores, shopping, traveling, bathing, dressing, toileting, and grooming; and mild for feeding. Id. Plaintiff reports that his left shoulder pain has also contributed to his unemployment. Id. Upon examination of Plaintiff's cervical spine NP Farrish reported his gait as abnormal, but without an assistive device; flexion 45 degrees; extension 0 degrees; lateral flexion 15 degrees on both the left and right; rotation 70 degrees to the right and 50 degrees to the left; tenderness and crepitus, and paraspinal tension present; radiation present to finger tips in the left hand; sensation normal to light touch; strength 3/5 in the left hand; and upper extremity deep tendon reflexes 2 on the right, but Plaintiff did not allow testing of the left side upper extremity. Id. at 494. Upon examination of Plaintiff lumbar and thoracic spine, NP Farrish reported Plaintiff's gait as slow, mild forward flexion with pain and no assistive device; flexion 10 degrees; extension 0 degrees; lateral flexion 15 degrees to the right and left; rotation 15 degrees to the right and left; positive straight leg raises on the left and right; normal curvature of the spine; pelvic tilt with forward flexion 5 degrees; no paraspinal tenderness, but tension present; able to stand on toes and heels; left extremity reflexes 2; strength 5/5; and intact sensory to light touch to lower extremities. Id. at 494-95. Upon examination of Plaintiff's left shoulder, NP Farrish reported significant atrophy of the deltoid muscle; 120 degrees flexion; 40 degrees extension; 140 degrees abduction; internal rotation 60 degrees; external rotation 60 degrees; crepitus; no effusion; impingement; and ...


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