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Newman v. Colvin

United States District Court, D. Arizona

March 17, 2015

Joseph Newman, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BRIDGET S. BADE, Magistrate Judge.

Plaintiff Joseph Newman seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his application for benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. The Commissioner also filed a notice of supplemental authority. (Doc. 40.) Plaintiff filed a document identified as a notice of filing a second amended complaint. (Doc. 41.) The Court construes that filing as a response to the Commissioner's notice of supplemental authority. For the following reasons, the Court affirms the Commissioner's decision.

I. Procedural Background

On June 21, 2010, Plaintiff applied for a period of disability and disability insurance benefits under Title II of the Act.[1] (Doc. 18.) He also applied for supplemental security income (SSI) under Title XVI of the Act. ( Id. )[2] Plaintiff alleged disability beginning September 30, 2003 due to a back injury (herniated disc) and a "skin condition painful dermatitis." (Tr. 18, Tr. 168.) After the Social Security Administration (SSA) denied Plaintiff's initial application and his request for reconsideration, he requested a hearing before an administrative law judge (ALJ). (Tr. 77-80.) After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 18-27.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6); see 20 C.F.R. §§ 404.981, 422.210(a) (explaining the effect of a disposition by the Appeals Council). Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Administrative Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff's health. The record also includes a lay opinion and opinions of state agency physicians who examined Plaintiff and reviewed the records related to Plaintiff's impairments, but who did not provide treatment.

A. Medical Evidence Before Plaintiff's June 2010 SSI Application

The record includes records of medical treatment beginning in March 2009.[3] On March 4, 2009, Plaintiff sought treatment at North Country Healthcare (North Country) for a wound on his lower left leg and was assessed with cellulitis. (Tr. 240.) On examination, Plaintiff had full strength, intact sensations and reflexes. ( Id. ) Plaintiff was noted to be "generally healthy." ( Id. ) Plaintiff was examined again at North Country on March 19, 2009. (Tr. 241.) The treatment notes from North Country indicate that the wound on Plaintiff's lower left leg had worsened, and he was referred to a surgeon. ( Id. ) Plaintiff had full strength, intact sensation, and normal reflexes. ( Id. )

On March 21, 2009, Plaintiff sought treatment at Summit Healthcare Regional Medical Center (Summit) for the wound on his lower left leg. (Tr. 255.) The treatment notes state that Plaintiff had a tender, swollen, and painful lesion on his lower left extremity. ( Id. ) On examination, Plaintiff was in no acute distress, and was alert and oriented, he had a normal range of motion, non-tender extremities, no sensory or motor deficits, and a normal mood and affect. (Tr. 256.) He was assessed with cellulitis. (Tr. 255.)

That same day, Plaintiff was admitted to the medical floor at Summit for intravenous antibiotic therapy. (Tr. 260-61.) When asked about possible contributing factors to his wound, Plaintiff stated that he initially thought the wound was from an insect bite and said that he was in Central America in 2007. (Tr. 260.) Plaintiff was discharged several days later. (Tr. 259-60.) At that time, the burning and swelling in Plaintiff's leg had improved and he was in no acute distress. (Tr. 259-60.) Plaintiff was prescribed amoxycilin and topical antibiotics. (Tr. 259.)

Plaintiff returned to Summit on March 27, 2009. (Tr. 273.) The treatment notes reflect that Plaintiff complained of a rash or hives on his trunk and extremities and swollen lips. (Tr. 273.) It was noted that Plaintiff had been taking amoxycilin, and he was assessed with an allergic reaction to amoxycilin and advised to stop taking that medication. (Tr. 273, 277.) On examination, Plaintiff's extremities were non-tender, he had no edema, and a normal range of motion. (Tr. 274.) He was oriented, had a normal mood and affect, and no motor or sensory deficit. ( Id. )

On April 14, 2009, Plaintiff followed up at Summit for the infection on his lower left leg. (Tr. 279.) Plaintiff reported swelling and itching and that his wound still appeared to be infected. (Tr. 279, 281.) On examination, Plaintiff was in no acute distress, and he was alert and oriented. (Tr. 281.) He had non-tender extremities, a full range of motion, and no edema. ( Id. ) He was scheduled for intravenous therapy for cellulitis and was prescribed antibiotics. (Tr. 280.)

On April 15, 2009, Plaintiff presented to North Country because he needed an order for a pic line for intravenous therapy for his cellulitis. (Tr. 239.) He was noted to be somewhat disheveled. ( Id. ) On examination, Plaintiff had full strength, intact sensations, and normal reflexes. ( Id. ) On April 15, 2009, Plaintiff started a course of outpatient intravenous therapy for the infection on his left leg. (Tr. 288-91, 295.) Plaintiff was alert, calm, responsive, oriented, and was assessed with "0" pain. (Tr. 290, 291, 295.)

On September 8, 2009, Plaintiff returned to North Country complaining of a swollen, red, burning, and itchy area on his left ankle. (Tr. 238.) The treatment notes refer to Plaintiff's March 2009 hospitalization for an infected wound in the same area. ( Id. ) Plaintiff was assessed with cellulitis. ( Id. ) Plaintiff had a normal physical examination with full strength, intact sensation, and intact reflexes. ( Id. ) On September 16, 2009, Plaintiff returned to Summit complaining of pain, itching, and swelling in his left ankle. (Tr. 297.) Plaintiff had a normal physical examination, he was alert and oriented, and in no acute distress. (Tr. 298-99.) Except for his ankle, Plaintiff had non-tender extremities. ( Id. ) Plaintiff was diagnosed with dermatitis. (Tr. 297-98.)

On September 17, 2009, Plaintiff was treated at Navapache Regional Medical Center for cellulitis. (Tr. 303.) On September 22, 2009, Plaintiff returned to Summit complaining of pain and swelling in his left foot or ankle and received follow-up care for cellulitis. (Tr. 305-07.) He had a normal physical examination with a full range of motion, he was alert and oriented, had a normal mood and affect, no motor or sensory deficit, and was in no acute distress. (Tr. 306-07.) Plaintiff was assessed with atopic dermatitis (eczema) and impetigo and was prescribed antibiotics. (Tr. 306, 309.)

B. Medical Evidence after Plaintiff's June 2010 SSI application

1. Skin Lesion and Rash

Between April and early September 2010, Plaintiff received treatment for itching and a lesion near the base of his penis. (Tr. 337-38, 340-44, 348, 372-78, 406, 437-58.) Plaintiff reported that he had the lesion for one year, and he believed that it was in an area where he was injured with splinters from wood. (Tr. 372, 375.) The lesion was diagnosed as condyloma. (Tr. 437.) During a July 7, 2010 examination, it was noted that Plaintiff also had a "follicular-type rash in both left and right side of his groan" that caused mild discomfort. (Tr. 372.) Plaintiff had the lesion excised and was prescribed prednisone for itching. (Tr. 337-38, 436-37.)

2. Nurse Practitioner Marvin Depas

On November 10, 2010, Plaintiff saw nurse practitioner (NP) Marvin Depas at North Country with complaints of joint pain and "itchy skin." (Tr. 370.) Plaintiff had a normal gait and was in no acute distress. ( Id. ) He denied joint pain and did not have a skin rash at that time. ( Id. )

During a November 22, 2010 appointment with NP Depas, Plaintiff complained of a bump on his forehead and "skin itchiness [that] turn[ed] into hives." (Tr. 379.) Plaintiff denied fatigue, dizziness, fever, headaches, feeling ill, night sweats, sleep disturbance, and weight loss. ( Id. ) On examination, Plaintiff was in no acute distress. ( Id. ) NP Depas assessed a superficial, non-tender mass on Plaintiff's forehead that was not inflamed. (Tr. 380.) He did not note a rash or hives. ( Id. )

On December 22, 2010, Plaintiff returned to NP Depas after a rheumuatolgy consultation. (Tr. 531.) Plaintiff complained of back and joint pain. ( Id. ) Plaintiff reported that pain did not affect his activity level and stated that he did not need NP Depas to address any pain. ( Id. ) NP Depas prescribed medication used to treat fibromyalgia and referred Plaintiff for physical therapy. (Tr. 531, 496-502.) A depression screen was normal and Plaintiff did not report anxiety. (Tr. 531-33.)

3. Ken Epstein, M.D.

On referral from NP Depas, on December 7, 2010, Plaintiff saw Dr. Epstein for a rheumatology consultation. (Tr. 487.) Plaintiff reported a twenty-year history of lower back pain and complained of generalized joint and muscle pain in his shoulders, right knee, hands, and feet. ( Id. ) Plaintiff denied significant inflammatory joint swelling, joint heat or redness. ( Id. ) Plaintiff reported that he took a "rare" ibuprofen "with mild relief at times." ( Id. ) He reported a history of a rash, which Dr. Epstein stated seemed "like chronic urticaria, " for which he reportedly took prednisone about three times a year. (Tr. 487.) Plaintiff was not taking any medication at that time. ( Id. )

On examination, Plaintiff was in no acute distress, he was alert, oriented, and had a normal gait and station. (Tr. 488.) He did not have a rash. ( Id. ) Plaintiff exhibited discomfort getting on the examination table, lying down on the table, and dismounting from the table, mildly decreased range of motion in his shoulders, and a moderately decreased range of motion in his spine. ( Id. ) Plaintiff reported tenderness at fourteen out of eighteen tender point sites used to assess fibromyalgia. ( Id. ) Dr. Epstein assessed fibromyalgia, low back pain, and chronic urticaria. ( Id. ) He recommended medication for fibromyalgia (neurontin) and physical therapy. ( Id. ) He stated that he would obtain a rheumatology panel to rule out a systemic inflammatory condition. (Tr. 488, 490-91.) In his opening brief, Plaintiff states that he followed up with Dr. Epstein on January 20, 2012. (Doc. 30 at 4.) The record, however, does not include evidence of this appointment.

4. Emergency Care Related to Alleged Incident with Police

In January 2011, Plaintiff went to the emergency room at Summit and reported that the police had forced him from his vehicle and hit, kicked, and tasered him. (Tr. 463.) A CT scan of his thoracic spine showed mild narrowing of the cervical spinal column (cervical spinal stenosis). (Tr. 464.) X-rays showed osteoarthritis in his right shoulder, mild degenerative changes in his left shoulder, mild degenerative changes in his right ankle, and a normal left ankle. (Tr. 465-68.) Emergency room personnel diagnosed bruises on Plaintiff's shoulders, ankles, and right elbow, cervical strain, and cervical spinal stenosis. (Tr. 463, 465-66, 468-69, 472-82.)

5. James Sielski, D.O.

About a year later, in January 2012, Plaintiff saw Dr. Sielski at North Country with complaints of body aches, muscles aches, and neck, back, and ankle pain. (Tr. 520, 521.) He also complained of a rash on both ankles. (Tr. 521.) Dr. Sielski noted that Dr. Epstein "thought [Plaintiff] might have fibromyalgia." ( Id. ) Plaintiff stated that he had been using only ibuprofen for pain. ( Id. ) On examination, Plaintiff was in no acute distress, he had some tender points in his elbows but full range of motion in his neck, normal mobility in his spine, normal strength and sensation, and a normal gait. (Tr. 522-23.) Dr. Sielski assessed fibromyalgia and prescribed neurontin. (Tr. 519-24.)

In a January 2012 letter to Plaintiff, Dr. Sielski stated that information from Dr. Epstein "suggested" that Plaintiff had fibromyalgia. (Tr. 519.) He noted that lab tests that Dr. Epstein ordered did not show any abnormalities, which was consistent with fibromyalgia. ( Id. ) He stated that Plaintiff had "multiple bilateral tender points which [were] consistent with fibromyalgia." ( Id. ) Dr. Sielski concluded that Plaintiff "probably" had fibromyalgia "unless or until we can determine another diagnosis." ( Id. ) In March 2012, Plaintiff contacted Dr. Sielski's office by telephone and asked for a prescription for physical therapy, stating "that it helped him out before." (Tr. 518.)

In August 2012, Dr. Sielski wrote a letter to Plaintiff's attorney stating that Plaintiff had been diagnosed with fibromyalgia and could not perform his past work as a diesel engineer. (Tr. 534.) Dr. Sielski did not opine about Plaintiff's ability to do other work and stated that a "formal physical capacity assessment ...


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