The opinion
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
BRADLEY J. PIERSALL, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-3306
)
KILOLO KIJAKAZI, )
Acting Commissioner of )
Social Security,1 )
)
Defendant. )
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Bradley J. Piersall appeals from the denial of his application
for Social Security Disability Insurance Benefits (Disability Benefits) under
Title II of the Social Security Act. 42 U.S.C. §§ 416(i) and 423. This appeal
is brought pursuant to 42 U.S.C. § 405(g). Piersall filed a Motion for
Summary Judgment (d/e 15). The Defendant Acting Commissioner
(Commissioner) filed a Motion for Summary Affirmance (d/e 21). Piersall
filed a Reply Brief to Commissioner’s Memorandum in Support of Motion
for Summary Affirmance (d/e 22). The parties consented to proceed before
this Court. Consent to the Exercise of Jurisdiction by a United States
1 The Court takes judicial notice that Dr. Kilolo Kijakazi, Ph.D., is now the Acting Commissioner of Social
Security. As such, he is automatically substituted in as the Defendant in this case. Fed. R. Civ. P. 25(d).
Magistrate Judge and Reference Order entered March 22, 2021 (d/e 13).
For the reasons set forth below, the Decision of the Commissioner is
AFFIRMED.
BACKGROUND
Piersall was born on May 9, 1980 and did not complete high school
and did not secure a GED. Piersall previously worked as retail sales
attendant, cable helper, construction worker, and machinist helper. He has
not worked since September 1, 2011 (Onset Date). Piersall was last
insured for Disability Benefits on December 31, 2017 (Date Last Insured).
Piersall suffered from degenerative disc disease of the cervical spine and
degenerative disc disease of the lumbar spine with L4-S1 herniations.
Certified Transcript of Proceedings Before the Social Security
Administration (d/e 9 and 10) (R.), 97, 670, 672, 678, 693, 699. This Court
previously reversed the Commissioner’s prior decision on Piersall’s
application and remanded the matter for further proceeding. Piersall v.
Berryhill, C.D. Ill. Case No. 17-cv-3172, Opinion entered August 15, 2018
(2018 Opinion). R. 732-70. Piersall brings this action for judicial review of
the denial of Disability Benefits after further proceedings before the Social
Security Administration.
STATEMENT OF FACTS
Evidence Submitted Before the Administrative Hearing
On August 28, 2011, Piersall was evaluated by a physical therapist.
He had some reduced strength and range of motion in his shoulders, but
otherwise had full strength and range of motion in his upper extremities.
He had no problems with mobility, gait, balance, or activity tolerance; he
had limited range of motion in his cervical spine; his posture had a cervical
protrusion; and he had some tenderness to palpation in his spine.
Spurling’s sign was positive on the right for pain.2 R. 397.
On September 5, 2011, Piersall went to the emergency room with
neck pain. He reported that he had the pain for a month and it had
increased on this day. R. 462. On examination, Piersall had reduced
range of motion in his neck; he had no motor weakness in his left upper
extremity; he reported parasthesias in his left hands and fingers; his back
was normal; his lower extremities were normal; his neurological exam was
normal, and his gait was normal. R. 463-64.
The emergency room physicians ordered an MRI of his cervical spine
without contrast. The MRI showed multilevel disk disease and
2 Spurling’s test is a test for radiculopathy. See Dorland’s Illustrated Medical Dictionary (32nd ed. 2012)
(Dorland’s), at 1900.
degeneration, most notably at C6-7. The MRI showed moderate disk
herniation contacting and deforming the cord producing moderate left-sided
neuroforaminal encroachment. R. 471.
On September 15, 2011, Piersall saw Dr. Robert Kraus, M.D. He
reported improvement in his left arm pain and said he had some spasms
and tightness in his upper chest that traveled into his upper left arm and
forearm. He had no pain in his right arm. He said the symptoms may have
occurred after striking his head on a beam at work six weeks earlier. R.
531. On examination, Piersall was 69 inches tall and weighed 252 pounds.
His muscle strength was 5/5 throughout. Dr. Kraus assessed acute left C7
radiculopathy, left C6-7 disc rupture, and tobacco use. Dr. Kraus said
Piersall was somewhat improved and recommended physical therapy. R.
531.
On October 13, 2011, Piersall saw Dr. Kraus. His left arm pain was
somewhat improved, but he had pain in his neck traveling into his triceps.
He reported that physical therapy was helpful, and his strength improved.
Piersall reported pain in his left thigh for six weeks. He did not have any
weakness in his legs. On examination, Piersall had full strength in his
extremities. Straight leg raising testing was negative bilaterally.3 Dr. Kraus
ordered an MRI of Piersall’s lumbar spine. R. 530.
On October 18, 2011, Piersall had an MRI of his lumbar spine which
showed herniation at L4-5 mildly indenting the thecal sac, extending
inferiorly to the rest behind the superior-posterior aspect of the L5 vertebra;
cervical herniation at L5-S1; and degenerative changes in the lumbar
spine, most evident at L4-5 and L5-S1. R. 459, 529.
On October 20, 2011, Piersall saw Dr. Kraus and reported continuing
improvement in his arm and neck symptoms. He had no arm pain at the
visit, but reported pain in his left buttock travelling down his left thigh into
his calf. Piersall reported no weakness in his extremities. On examination,
he had full strength in his extremities and straight leg raising testing was
negative bilaterally. Dr. Kraus reviewed the October 18, 2011 MRI. Dr.
Kraus referred Piersall for epidural steroid injections at L4-5 space of his
spine and said his prognosis was guarded due to the secondary leg pain
from the L4-5 disc rupture. He discussed various options with Piersall. R.
527.
3 Straight leg raising is a test for lumbosacral nerve root irritation. Straight Leg Raise Test - StatPearls -
NCBI Bookshelf (nih.gov), visited February 1, 2022.
From September through December 2011, Piersall had physical
therapy. R. 391-429. He stopped physical therapy because he did not
have insurance. R. 420. On November 25, 2011, the physical therapist
found that Piersall’s lower extremities had range of motion within normal
limits and 4+/5 strength; he had pain with moving his lumbar spine; he had
no problems with his gait, balance, or joint mobility; his sensation was
intact; he had pain on palpation of his lumbar spine at L4-L5; and he had a
problem with activity tolerance. R. 411.
On November 10, 2011, Piersall saw Dr. Kraus and reported ongoing
lower back and left leg pain. He had pain in his left buttock that traveled
into the thigh, calf, and foot. His neck was doing well. On examination,
Piersall had some tightness in the left leg with straight leg raising and he
retained strength in his left leg. Dr. Kraus assessed a left L4-5 disc rupture,
L4-5 radiculopathy, resolved left C7 radiculopathy, and history of left C6-7
dis rupture. Dr. Kraus recommended epidural injections at L4-5. R. 525.
On November 15, 2011, January 11, 2012, and February 13, 2012,
Piersall had left L4-5 transforaminal epidural steroid injections. R. 448-49,
452, 455. After the last injection, Piersall reported that his pain dropped
from a 6/10 to a 2/10. R. 449.
On November 23, 2011, Piersall saw Dr. Kraus. He reported
improvement after the injection, but he still had low back discomfort. He
had no neck or arm symptoms. On examination straight leg raising testing
was negative bilaterally. Dr. Kraus referred Piersall to physical therapy for
a conditioning program for his lower back. R. 524.
On December 20, 2011, Piersall saw Dr. Kraus and reported pain
from his left buttock down into his thigh. His back was not bothersome at
the time of the visit and he had one steroid injection completed. On
examination, Piersall had full strength in his lower extremities. Dr. Kraus
recommended Piersall complete an additional steroid injection and
prescribed “maximizing conservative measures” before considering
surgery. R. 523.
On January 17, 2012, Piersall saw Dr. Kraus and reported that he
had low back pain with morning stiffness. He said his leg pain was
resolved entirely. On examination, he had full range of motion in his hip
joints, straight leg raising testing was negative bilaterally, and he had
symmetric strength in his lower extremity muscles. Dr. Kraus assessed
resolved L5 radiculopathy, left L4-5 disc rupture, degenerative disc disease
at L4-5 and L5-S1, and a resolved C6-7 radiculopathy. Dr. Kraus opined
that Piersall was not a surgical candidate because he was too young and
recommended that he stop smoking and engage in weight loss or daily
exercise. Dr. Kraus stated the prognosis was guarded, “I do not think I can
improve his back pain complaints with spinal fusion.” R. 521.
On March 13, 2012, Piersall saw Dr. Kraus. Piersall said his back
and leg pain were no better. He had completed three steroid injections and
the injections provided only temporary improvement. He had pain mostly in
the morning that traveled from his back down his left leg. Piersall was
uncomfortable. On examination, straight leg raising was slightly positive on
the left and negative on the right and he had full strength in his lower
extremities. Dr. Kraus reviewed the October 18, 2011 MRI. Piersall was
interested in surgery and Dr. Kraus told him that the surgery would reduce
his leg pain but not his back pain. Dr. Krause advised Piersall that he was
too young for the surgery and recommended that Piersall stop smoking,
lose weight, and start a generalized activity program. R. 519.
On March 19, 2012, Piersall saw Dr. Kraus. He reported low back
and leg pain and said the injections provided only temporary relief from the
pain that radiated from his back to his left leg. On examination, straight leg
raising was slightly positive on the left and negative on the right, muscle
strength in his lower extremities was 5/5, and he had no edema in his calf.
Dr. Kraus reviewed the October 18, 2011 MRI and discussed options with
Piersall, including surgery. Dr. Kraus told Piersall that the surgery was
designed to reduce leg pain, but he would likely still have back pain, and he
was too young for the surgery. Dr. Kraus recommended smoking
cessation, weigh reduction, and a generalized activity program. R. 519.
On March 20, 2012, Piersall had a CT scan of his lumbar spine
without contrast. The scan showed central herniation and posterior
spondylosis at L4-5, similar to the October 18, 2011 MRI. R. 446.
On March 27, 2012, Piersall went to the hospital emergency room
with complaints of left arm pain that started a month earlier. The pain
started in the back of his neck and began traveling down his left arm and
into all of his left fingers. He was prescribed Ultram (tramadol) and Flexeril
(cyclobenzaprine), but they did not help. Rest improved the pain. R. 436.
On examination, Piersall’s neck was slightly flexed forward; he had no pain
upon range of motion of his shoulder joints; and he had 5/5 muscle strength
throughout his upper extremities. The emergency room doctors reviewed
the October 18, 2011 MRI. R. 436-37.
On March 27, 2012, Piersall also saw Dr. Kraus. He reported back
and left leg pain radiating from his back down into his left thigh and calf
region. Piersall said he had had the pain for 10 years and believed the
pain started after a snowmobile accident. On examination, Piersall moved
comfortably; he had positive straight leg raising testing on the left and
negative on the right; he had full strength in his lower extremities. Dr.
Kraus reviewed the March 20, 2012, CT scan. Piersall agreed to proceed
with back surgery. Dr. Kraus advised him that because he had spondylosis
and because of his younger age, the pain may recur. Dr. Kraus advised
weight reduction and smoking cessation for long-term management of his
condition. R. 516.
On April 5, 2012, Piersall saw Dr. Kraus.4 His left arm pain had
somewhat improved and he thought his strength had also improved and
that physical therapy was helpful. He reported pain in his left thigh for
about six weeks, but he did not have any weakness in his left thigh. Dr.
Kraus reviewed the March 20, 2012 CT scan and noted calcified disc
herniation and/or spondylosis across the L4-5 and L5-S1 spaces, as well
as some degenerative disc collapse across L4-5; but no pars defect,
fracture or subluxation. Piersall elected to proceed with back surgery. Dr.
Kraus told him again that the surgery was intended to relieve leg pain only.
He also told Piersall that because of his young age and the spondylosis,
the pain may recur. Dr. Kraus again recommended weight reduction and
4 The notes from the March 27, 2012 emergency room visit and the April 5, 2012 office visit with Dr. Kraus
were combined into one record.
smoking cessation for long-term management of his symptoms. R. 436-38.
On April 5, 2012, Dr. Robert Kraus, M.D., performed a left L4-5 laminal
foraminotomy for decompression and removal of spondylitic ridge. R. 545-
46.
On April 12, 2012, Piersall saw Dr. Kraus for a post-operative check.
Piersall reported that his leg pain had resolved. He had discomfort in his
left buttock, but it was much better. On examination, he had full strength in
his lower limbs; straight leg raising testing was negative; he had no pain
upon range of motion in his hips. Dr. Kraus removed the staples from the
incision and said Piersall could increase lifting to 10-15 pounds. R. 506.
On May 16, 2012, Piersall saw Dr. Kraus for a post-operative check.
Piersall reported no back or leg pain and that he took Norco
(acetaminophen and hydrocodone) for pain. He did not report any
weakening in his legs and he had not tripped or fallen. On examination,
Piersall moved without difficulty; he had no pain upon range of motion of
his hip joints; straight leg raising testing was negative bilaterally; and he
had no calf edema. R. 505. Dr. Kraus stated that Piersall could increase
his lifting limit to 25 pounds and recommended that he stop smoking and
begin a weight reduction program. Dr. Kraus referred Piersall to physical
therapy. R. 505.
On June 27, 2012, Piersall saw Dr. Kraus for a post-operative check.
Piersall reported that he was no better after the surgery and reported
ongoing low back pain. Piersall did not have any numbness, weakness, or
pain in his legs. He took Norco daily for the back pain. R. 504. On
examination, Piersall moved comfortably; he had full strength in his lower
limbs; straight leg testing was negative; he had no pain upon range of
motion of the hip joints. Dr. Kraus assessed chronic low back pain,
degenerative disc disease L4-5, L5-S1, tobacco use, obesity, and status
post left L4-5 decompression surgery. Dr. Kraus recommended that
Piersall lose weight and stop smoking and opined that he could not provide
a surgical solution to Piersall’s back pain. R. 504.
On August 2, 2012, Piersall saw pain specialist Dr. Atiq UR Rehman,
M.D., at the Decatur, Illinois, Memorial Hospital Millennium Pain Center
(Pain Clinic). R. 478-82. Piersall reported that he had pain in his left lower
back that went down into his left hip and pain in his neck. Piersall indicated
that he previously had injections in his lumbar spine and reported one to
two days of pain relief from the injections. The pain was 7/10 at the
appointment. It was worse with physical activity and better with medication.
On examination, Piersall weighed 268.8 pounds; he had 5/5 strength in his
lower extremities; straight leg testing was positive bilaterally; Patrick test
was positive on the right and negative on the left5; Gaenslen, POSH, and
facet maneuvers were negative bilaterally6; sacral tenderness was positive
bilaterally; trochanteric bursa tenderness was negative bilaterally. Dr.
Rehman assessed low back pain, left sacroiliac (SI) joint dysfunction,
degenerative disc disease, post the April 5, 2012 back surgery and ordered
an MRI of his lumbar spine. R. 479-81.
On January 30, 2013, Piersall had imaging of his lumbar spine with
and without contrast. The imaging showed disk desiccation and disk space
narrowing at L4-L5, with anterior disk bulging and posterior disk flattening.
The disks at L4-L5 and L5-S1 were herniated. The L5-S1 herniation was
moderately extruded and moderately indenting the thecal sac. R. 433, 566.
On February 4, 2013, Piersall saw Dr. Rehman for a follow-up on his
lower back pain. R. 475-77. He reported continued low back pain that
radiated into his left leg. Piersall did not have a primary care physician and
did not have any pain medications for the last two weeks. Dr. Rehman
stated, “Patient is wanting to get things started on having his pain treated.”
5The FABERE/Patrick test is a maneuver of the hips and legs while supine to determine the presence or
absence of sacroiliac disease. Stedman’s Medical Dictionary, 907150 “Patrick test,” available on Westlaw
Edge database, viewed February 2, 2022.
6The Gaenslen sign is pain on hyperextension of the hip with pelvis fixed by flexion of the opposite hip.
Stedman’s Medical Dictionary, 819100 “Gaenslen sign,” available on Westlaw Edge database, viewed
February 2, 2022. The POSH is a posterior shear test to assess pain originating from the sacroiliac joint.
POSH Test (thestudentphysicaltherapist.com), viewed February 2, 2022. Facet loading maneuvers
involve extending and rotating the spine to elicit a pain response. Alexander, Sandean, and Varacallo,
“Lumbosacral Facet Syndrome,” Lumbosacral Facet Syndrome - StatPearls - NCBI Bookshelf (nih.gov),
viewed February 2, 2022.
R. 475. Piersall rated his pain at 6/10 and reported a back injury from a
snowmobile accident. Dr. Rehman assessed low back pain, left S1 joint
dysfunction, degenerative disk disease, and history of April 5, 2012 back
surgery. Dr. Rehman prescribed Neurontin (gabapentin). R. 476.
On March 14, 2013, Piersall saw Dr. David Gregory, M.D., as a new
patient to establish primary care. He reported low back pain. Piersall was
69 inches tall, weighed 264 pounds and had a body mass index (BMI) of
39. R. 484. On examination, Piersall was in no acute distress; his neck
was supple, with no masses; his back had normal curvature with no
tenderness but had limited range of motion secondary to pain; he had full
range of motion in his extremities with no deformities, edema, or erythema.
R. 484. Dr. Gregory prescribed Flexeril and Norco and advised Piersall to
quit smoking. R. 485.
On April 15, 2013, Piersall saw Dr. Gregory. His pain was “about the
same; will be fine one day and then we’ll (sic) sit down on the couch and
will have sharp pain shooting down into his buttocks and leg.” On
examination, his back had normal curvature and no tenderness but
decreased range of motion secondary to pain; he had full range of motion
in his extremities with no deformities, edema, or erythema; straight leg
raising test was negative bilaterally. Dr. Gregory recommended seeing Dr.
Kraus for further evaluation and recommended a low fat, low carbohydrate
diet “given that he’s not able to really exercise all that much”. R. 486.
On April 30, 2013, Piersall saw Dr. Kraus. He reported low back pain
and stiffness in the morning that improved during the day. The pain,
however, would become worse if he twisted or turned during the day. He
had intermittent left leg pain, but the leg pain was not limiting; he had no
weakness in his legs. On examination, Piersall rated his low back pain at
6/10; he had full strength in his lower extremities; straight leg raising tests
were negative; and he had no pain on range of motion in his hips. Dr.
Kraus reviewed the January 30, 2013 MRI and compared it with prior
imaging. Dr. Kraus recommended weight reduction, smoking cessation,
and a daily exercise program and opined that surgery would not improve
his condition. R. 491.
On September 18, 2013, Piersall completed a Function Report—
Adult form (Function Report) with the assistance of a non-attorney
representative Tama Weltzin. R. 280-91. Piersall said he lived in a house
with his children and his fiancé. R. 282, 287. Typically, he got up at 5:00
or 6:00 am, showered and dressed, woke up his children, ate breakfast and
fed his children, took his children to school, ran errands, watched
television, ate lunch, napped, did laundry, picked up his children after
school, helped them with homework, ate dinner with his family, gave his
children baths, watched television, and went to bed about 9:00 p.m. R. 282.
Piersall said he had difficulty falling asleep and staying asleep
because of his pain. He had difficulty dressing himself and bathing himself
because of his pain and had difficulty holding objects such as razors,
silverware, and glasses. He also had problems cutting food because of his
hands. R. 283-84.
Piersall reported that he prepared meals daily, did laundry daily, and
mowed his yard weekly. He drove short distances because he could not sit
in a car for long periods, and he had difficulty holding the steering wheel.
He also had problems turning his head to check for traffic and he avoided
driving in unfamiliar routes and heavy traffic due to anxiety. R. 285-86.
Piersall fished one to two times a month, and he built radio-controlled
cars once a month. He fished where he could sit and did not need to walk
long distances. He had problems performing the fine motor skills needed
to build radio-controlled cars and sometimes had problems concentrating
while watching television. He also often switched positions or got up while
watching television. R. 283.
Piersall said his condition limited his ability to lift, squat, bend, stand,
complete tasks, and use his hands. R. 282. He avoided “lifting more than
10 pounds due to pain, numbness, tingling, muscle spasms, weakness,
and fatigue.” R. 288. He had difficulty standing for long periods and said he
could walk slowly for 10 to 15 minutes, but then needed to rest 20 to 30
minutes. He climbed stairs slowly and held onto the railings and took
longer to complete tasks because he took frequent rest breaks. He had
difficulty using his hands for fine motor skills, gripping, and grasping “due to
numbness, tingling, weakness, and fatigue.” He had difficulty concentrating
because of his pain and also had problems remembering instructions. R.
288-89. Piersall had no difficulty getting along with others, including
supervisors, and could handle stress, but experienced increased anxiety
when he had changes in routine. R. 289.
On November 19, 2013, Piersall saw state agency physician Dr.
Hima Atluri, M.D., for a consultative examination. R. 537-41. Piersall said
he had constant back pain and he could not stand for more than 15-20
minutes without stretching. He could not sit for more than 30 minutes and
could not walk for more than a block. He could manage walking at his
home as long has he went at a slow pace. He could not run, and brisk
walking and brisk exercise was very hard. He reported pain in his back and
neck and numbness and tingling in his fingers. R. 537.
On examination, Piersall was 5 feet 9 inches tall and weighed 258
pounds. Dr. Atluri found significant paraspinal spasms in Piersall’s neck
and that he had limited range of motion in his neck. Piersall had normal
movement in his shoulders, elbows, and wrists. He had normal grip
strength, normal fine motor movements in his hands and fingers, and no
muscular atrophy in his upper extremities. He had normal movement in his
knees and ankles, no foot drop, and no muscle atrophy in his lower
extremities. Straight leg raising testing was abnormal with pain in the back
of the thighs both standing and lying down. Piersall had limited range of
motion in his lumbar spine and severe paraspinal spasms in the lower
lumbar area with no point tenderness. He had moderate difficulty getting
on and off the exam table and performing tandem walking. Piersall could
not heel walk, toe walk, squat, or hop on one leg. He did not need an
assistive device to walk. Dr. Atluri assessed central obesity, cervical spine
problem with paraspinal spasm, lower lumbar pain with abnormal straight
leg testing and radiculopathic symptoms. R. 538-40.
On December 2, 2013, Piersall saw Dr. Gregory for a follow-up on his
back pain. Dr. Gregory stated,
Mr. Piersall comes in today for follow-up of his low back pain.
Things are about the same; evidently the neurosurgeon here in
town basically told him there is nothing more that he could do
and the patient should have pain. Patients (sic) pain and
problems or (sic) some such that he really cannot work, and he
is currently still on disability with his job (so there is an income)
however he still does not have any insurance and really can't
afford even to get a second opinion on his back until he does
have some form of insurance. His children are on "All Kids" but
he and his wife evidently bring in too much money to qualify.
R. 543-44. On examination, Piersall had no tenderness in his back and full
range of motion in his extremities. Dr. Gregory observed no localized
neurological or physiological findings. R. 543.
On December 11, 2013, state agency physician Dr. Towfig Arjmand,
M.D., completed a Physical Residual Functional Capacity Assessment of
Piersall. R. 119-20. Dr. Arjmand opined that Piersall could occasionally lift
20 pounds and frequently lift 10 pounds; stand and/or walk six hours in an
eight-hour workday; sit for six hours in an eight-hour workday; occasionally
climb ladders, ropes, and scaffolds; occasionally stoop, crouch, and crawl;
but had no other physical limitations. R. 119-20.
Dr. Arjmand noted that Piersall had bilateral carpal tunnel release
surgery in 2001 and back surgery in 2012 at the L4-5 level. Dr. Arjmand
reviewed MRIs dated September 5, 2011, October 18, 2011, January 30,
2013, and November 2013. R. 120.
On February 5, 2014, the Hartford Insurance Company wrote Piersall
a letter (Letter). R. 570. Piersall’s former employer Rathje Enterprises, Inc.
d/b/a Bodine Electric of Decatur, provided long term disability benefits
coverage to its employees through Hartford Insurance Company. The
Letter stated that Piersall qualified for long term disability benefits on and
after March 5, 2014. R. 570.
On March 28, 2014, Piersall saw Dr. David Gregory, M.D., for a
follow-up on his back pain and disk herniation. He reported that the
pain was about the same. On examination, Piersall’s back had no
tenderness, but decreased range of motion secondary to pain and stiffness.
Piersall had full range of motion in his extremities and Dr. Gregory
observed no localized neurological findings. Dr. Gregory continued
Piersall’s pain medications and added Celexa (citalopram) for anxiety. R.
542.
On June 5, 2014, state agency physician Dr. Young-Ja Kim, M.D.
prepared a Physical Residual Functional Capacity Assessment of Piersall.
R. 130-32. Dr. Kim’s assessment agreed with Dr. Arjmand’s December
2013 assessment. R. 130-31. Dr. Kim listed the same medical history and
examinations mentioned by Dr. Arjmand. R. 131.
On August 29, 2014, Piersall saw Dr. Gregory. He was beginning to
experience numbness/pain/tingling in his left leg down to his left foot. Dr.
Gregory stated,
Patient states that he is not sure what to do about all of this; the
neurosurgeon will not operate on him, and he is not really able
to work. Because of the back pain. Any time he tries to lift
anything, or do anything. Regardless, he is still being denied
by disability, because they believe he can do “some work.” The
problem is, he is needing to take Percocet on a semi regular
basis, and I would have to think that the narcotics would not
place him in a category where he could drive on a consistent
basis, nor be considered to be unimpaired on a consistent
basis. I’m not sure why the decision was made the way it was
made, but I told him that I would be more than happy to assist
him with a letter, if it is deemed necessary.
R. 576. On examination, Piersall’s extremities showed no cyanosis,
clubbing, or edema. He had limited range of motion in his lumbar spine
secondary to pain and had a weakly positive straight leg raising test on the
left. R. 576.
On February 6, 2015, Piersall saw Dr. Gregory. He reported no
worsening of his back pain or radiculopathy symptoms. On examination,
Piersall had no edema in his extremities, and he had moderate to severe
decreased range of motion in his lumbar spine. R. 577.
On September 11, 2015, Piersall went to the hospital emergency
room with neck and left shoulder pain. He reported that he hurt his neck at
work two years ago and an MRI showed two ruptured discs. He reported
that the doctors at that time said they could not perform surgery on his
neck. He had physical therapy and injections in his neck, but the shots did
not give him any relief. He did not have a primary care physician. R. 655.
On examination, Piersall was oriented with a normal affect; he was tender
in his neck and lumbar spine; he had limited range of motion in his spine;
he had no gross motor deficits. The emergency room physicians
prescribed pain relievers and discharged him. His condition had improved.
R. 657.
On October 9, 2015, Piersall saw Dr. David Oligschlaeger, D.O. as a
new patient. R. 579-80. Piersall reported a long history of back issues and
said he wanted further treatment. On examination, Piersall’s gait and
station were normal. Dr. Oligschlaeger assessed chronic back pain greater
than three months duration and ordered a lower extremity electromyogram
(EMG). R. 580. On November 4, 2015, Piersall had an EMG study of his
lower extremities and the test results were normal. R. 581-82.
On November 12, 2015, Piersall saw Dr. Oligschlaeger. R. 585-87.
He continued to have spasms and back pain and did not sleep well due to
the pain. Piersall reported his activities were limited because when he
became active “very shortly then he’ll begin having pain.” R. 585. On
examination, Piersall was oriented and in no acute distress. He had normal
mood and affect. Dr. Oligschlaeger assessed chronic pain greater than
three months and ordered physical therapy and prescribed Cymbalta
(duloxetine). Dr. Oligschlaeger noted, “He is not requiring narcotics for
pain control at this point and hopefully we can continue that. We’ll add
some Flexeril for bedtime use.” R. 586-87.
On January 8, 2016, Piersall saw Dr. Oligschlaeger. Piersall reported
that he experienced pain down his arms during physical therapy when he
was supporting himself and had pain in his legs when he sat for extended
periods. He had some improvement from the Flexeril but not the Cymbalta.
R. 595. On examination, Piersall was oriented and in no acute distress.
He had a normal mood and affect. Dr. Oligschlaeger assessed chronic
pain greater than three months, cervical radiculopathy, and radiculopathy in
the lumbosacral region. R. 596. Dr. Oligschlaeger increased the Cymbalta
dosage, renewed the Flexeril, and ordered MRIs of Piersall’s cervical and
lumbar spine. R. 597.
On January 13, 2016, Piersall had MRIs of his lumbar and cervical
spine. R. 565-68. The MRI of the lumbar spine showed herniated
discs at L4-5 and L5-S1, with greater degenerative changes at L4-5 than at
L5-S1. R. 565. The MRI of the cervical spine showed a herniated, bulging
disc at C6-C7 mildly impinging on the spinal cord at C6-C7. The bulging at
C6-C7 and C5-C6 was greater than at other cervical levels. There was
also foraminal encroachment at C3-C4 with uncovertebral joint
hypertrophy, disk bulge, and broad-based herniation. R. 567-68.
On February 15, 2016, Piersall saw Dr. Oligschlaeger. R. 609-11.
Piersall complained of continuing back pain and reported that the Cymbalta
did not improve his pain. He stopped taking it because it caused bowel
issues. On examination, Piersall was oriented and in no acute distress; his
mood and affect were normal; his gait and station were normal. R. 610.
Dr. Oligschlaeger prescribed sertraline HCL (Zoloft) instead of Cymbalta
and stated he would fill out papers from the Social Security Administration.
R. 611.
On March 10, 2016, Piersall started physical therapy. R. 635-37. He
reported stiffness in his neck and lumbar spine and rated his pain as 6/10.
He reported problems sleeping. He currently could engage in household
activities. The physical therapist assessed decreased range of motion,
decreased strength, and decreased activity tolerance. R. 637. Piersall
attended physical therapy sessions on March 16, 2016, March 18, 2016,
March 24, 2016, March 29, 2016, March 31,2016, April 5, 2016, and April
7, 2016. R. 638-47. He showed some improvement. On April 7, 2016,
Piersall reported that his pain was not as sharp and not constant. R. 646.
He still had decreased range of motion, decreased strength, and decreased
activity tolerance. His therapy goals were unmet. R. 646. The therapist
stated that Piersall would benefit from skilled rehabilitation and that therapy
would be discontinued because Piersall wanted to return to his doctor “to
see what he plans to do next.” R. 647.
On April 19, 2016, Piersall saw advanced practice nurse (APN)
Kathryn A. Naron, CNP, at the Pain Clinic. R. 647-51.7 He reported
constant pain in his lower back and buttocks, mostly on the left. He said
“Sitting, standing, daily activities, and everything makes the pain worse.”
He reported that he used a TENS unit with little relief and received little
relief from injections. He had neck pain and had difficulty moving his head
up and down. R. 647. On examination, Piersall was in no acute distress;
he had a normal gait; he had paraspinal tender points but no spinal tender
points; he had sub-scapular tenderness bilaterally; and he had 5/5 strength
throughout his neck, shoulders, and upper extremities. R. 649-50. Naron
assessed low back pain, left SI joint dysfunction, degenerative disc
disease, history of surgery at L4-5, neck pain, multi cervical disc bulges
and cervical spondylosis. R. 650. Naron recommended injections in the
cervical spine. Dr. Rehman met with Piersall during the office visit and
reviewed Naron’s care plan. R. 651. On April 28, 2016 and May 12, 2016,
7 Naron’s credential is as a certified nurse practitioner, CNP. The notes state, however, that she was an
advanced practice nurse,
APN. R. 647.
Dr. Rehman administered interlaminar cervical epidural steroid injections
into Piersall’s cervical spine. R. 651-53.
On May 11, 2016, Dr. David Oligschlaeger completed an
“Absenteeism as it Relates to Employment” form and a “Social Security
Administration Listing of Impairments” form. R. 613-14. The Social
Security regulations contain a list of medical impairments that are so
severe that an unemployed person is disabled regardless of the person’s
age, education, or work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d);
20 C.F.R. Part 404 Subpart P, Appendix 1. The listed impairments are
referred to individually as a “Listing,” and collectively as the “Listings.” Dr.
Oligschlaeger opined that Piersall had evidence of root compression and
positive straight leg testing, but his condition did not meet Listing 1.04 for
disorders of the spine. R. 614. Dr. Oligschlaeger also opined that, if
employed, Piersall would miss work two or more days per month due to his
back and neck problems. R. 613.
On May 27, 2016, Piersall saw APN Naron. The injections in his
cervical spine did not relieve his pain, but he had “a little better” range of
motion. He said the pain was constant, but worse when he bent over,
stood up straight, or stood too long. He reported shooting pain when he
reached for objects and said he felt worse after his last set of physical
therapy sessions. Piersall said the stretches recommended by physical
therapy helped. He also reported pain in his low back down to his thighs
with the worst pain in his left leg. He said Flexeril helped with the pain, but
Tylenol and Motrin did not. R. 1018. Naron recommended injections in his
neck and prescribed Lyrica. R. 1020.
On June 16, 2016, Piersall saw APN Naron. Piersall walked with a
steady gait as he arrived. He said his insurance would not approve Lyrica
and stated that he did not want more injections. He wanted a prescription
for Norco. R. 1021. On examination, Piersall weighed 291 pounds and
had a BMI of 42.95. R. 1022. Naron recommended injections and Piersall
refused. Naron told Piersall that if she prescribed opioids, she needed to
see improvement in weight loss, range of motion, and an increase in daily
activities. Naron gave Piersall for his review a required contract for
prescribing narcotics. She prescribed nortriptyline (Pamelor). R. 1023.
On July 14, 2016, Piersall saw advanced practice nurse Keith
Cermak, APN, at the Pain Clinic. He reported neck and shoulder pain, low
back pain that radiated down into his hips and into his left thigh to his knee.
He rated his pain at 5-6/10 at rest and said the Pamelor and Flexeril did not
help much with the pain. R. 1024. He signed the opioid agreement.
Cermak gave Piersall a one-time prescription for Norco and told Piersall
that he had to complete a psychological review to receive any more
prescriptions for opioids. R. 1026.
On August 12, 2016, Piersall saw APN Cermak. His neck and
shoulder pain were better, but not his pain in his low back that radiated
down to his left thigh. He leaned forward on the examining table to relieve
his pain. Piersall said he tried to become more active “but [activity]
increases the pain.” He said the meds relieved some of his pain and
reported no side effects except mild drowsiness. R. 1027. On
examination, range of motion was normal, lumbar spinal tender points were
present, but lumbar paraspinal tender points were not present. He had
tenderness in the left SI joint, trochanteric bursitis on the left, and positive
facet maneuvers bilaterally. Straight leg raising was negative bilaterally.
He had a positive FABER/Patrick sign on the left. Gaenslen sign and
POSH were not present. He had normal strength throughout his lower
extremities and his sensation in his left lateral thigh was diminished. R.
1029-30. Cermak refilled the Norco prescriptions for low back pain due to
lumbar post laminectomy syndrome and also recommended and Piersall
agreed to additional injections. R. 1032. On September 8, 2016, Dr.
Rehman administered injections in Piersall’s left SI joint and trochanteric
bursa. R. 1032-33.
On September 19, 2016, Piersall saw his primary care provider Dr.
Oligschlaeger. He complained of right shoulder pain and said the pain
started two weeks earlier when he reached up to catch a cell phone and felt
a strain with some popping and cracking. The day before the visit, his son
gave him a hard “high five” hit. He felt popping and cracking again and felt
pain since. He reported difficulty raising his right shoulder due to pain. R.
1166. On examination, Piersall was oriented and in no acute distress; his
gait and station were normal; he was tender over the front of his right
shoulder and pectoral area; he had a tender point over the midpoint of the
clavicle; he had pain with active range of motion and minimal pain with
passive motion up until his elbow was raised above his shoulder. R. 1167.
Dr. Oligschlaeger assessed acute right shoulder pain and ordered an x-ray
of the right shoulder. R. 1168.
On September 29, 2016, Piersall saw APN Cermak. Piersall reported
that the September 8, 2016 injections provided pain relief for one and a half
to two weeks and currently provided 30 to 40 percent relief. He continued
to report low back pain that went down to the left knee, neck pain that
radiated into both shoulders, and right shoulder pain for two months. He
said an x-ray showed no structural problems. He could not reach out to
pour milk, and he could not sleep on his right shoulder. It was painful to let
the right arm hang down. R. 1033. On examination, Piersall had positive
lumbar facet loading maneuvers. R. 1035. Cermak scheduled more
injections. R. 1035-36. On October 14, 2016, Dr. Rehman administered
bilateral lumbar facet medial branch blocks at L4-5 and L5-S1. R. 1036.
On November 11, 2016, Piersall saw APN Cermak. He said he got
no relief from the October 14, 2022 lumbar branch blocks and reported a
new pain in his tailbone in addition to his low back and left leg pain. He
had some drowsiness with his medications. R. 1037. Cermak also
scheduled more injections. R. 1040. On December 19, 2016, Dr. Rehman
administered a caudal epidural steroid injection for lumbar disc bulging. R.
1040-41.
On January 4, 2017, Piersall saw APN Cermak. Piersall arrived with
a steady gait and said the December 19, 2016 injection provided 50
percent relief for five days. He reported getting “a shock that shoots down
my leg.” He reported that his constant low back pain returned when he was
wrapping presents and he felt like he was walking differently. R. 1041.
Cermak told Piersall that injections were no longer an option and discussed
the possibility of a spinal cord stimulator. Piersall would talk to his primary
care provider to obtain a referral to a neurosurgeon. Cermak continued the
Norco prescription. R. 1043.
On February 22, 2017, Piersall saw Dr. Oligschlaeger for a referral to
a neurosurgeon for a second opinion regarding the possibility of further
surgery. R. 1163.
On March 2, 2017, Piersall saw Dr. Oligschlaeger. He reported
numbness in his arms and continuing back and right shoulder pain. R.
1160. On examination, Piersall was oriented and in no acute distress; his
mood and affect were normal. Dr. Oligschlaeger did not record any
musculoskeletal findings in his examination notes and ordered an EMG
study of Piersall’s upper extremities. R. 1161.
On March 23, 2022, Piersall had the EMG study performed. The
study showed bilateral carpal tunnel syndrome, moderately severe on the
left and mild to moderate on the right, with no evidence of cubital tunnel
syndrome, cervical radiculopathy, plexopathy, or disease at the muscle
level. R. 1196.
On April 4, 2017, Piersall saw APN Cermak. Piersall said the Norco
and nortriptyline helped with the pain and reported no side effects. He
continued to have low back pain that radiated into his left leg. Piersall said
his leg pain “comes/goes.” He still had neck pain and rated his pain at rest
at 4/10 and his pain on activity at 8/10. R. 1044. Cermak scheduled
another cervical epidural steroid injection (CESI). Cermak stated,
Schedule for CESI; Pt has had in the past with excellent
sustained relief greater than 50% that lasted over 3 months and
an increase in abilities to complete adl's and able to stand and
walk for extended periods of time due to decreased pain. Pt
feels that this is the same pain and is having difficulty with
these activities again.
R. 1047.8 On April 13, 2017, Dr. John P. Braodnax, M.D., of the Pain Clinic
administered a cervical epidural steroid injection to Piersall. R. 1051.
On April 27, 2017, Piersall saw APN Cermak. He had a steady gait
when he arrived and said the CESI injection took away the pain on the front
side of his collarbone, but pain in the back of his neck into his shoulder
blades still bothered him. He rated the pain relief at 60 percent and said
the Norco and nortriptyline continued to help with his pain. He did not have
any side effects. Piersall denied having headaches, paresthesia, or loss of
motor function. R. 1056, 1058. Cermak scheduled facet block injections in
Piersall’s cervical spine. R. 1058.
On May 16, 2017, Piersall saw APN Cermak. Piersall said he got no
relief from the facet block injections, and he said the pain in his neck
actually worsened. He also continued to have pain in his left hip that
radiated down to his ankle. He said he could not put any weight on his left
8 ADL stands for activities of daily living. See e.g., 20 C.F.R. 404.1529.
leg. R. 1063. Cermak prescribed gabapentin and referred Piersall for aqua
therapy. R. 1065.
On June 20, 2017, Piersall saw APN Cermak. Piersall complained of
neck and shoulder pain that radiated into his arms and reported mid back
pain. His medications helped with the pain and he did not have any side
effects. Cermak noted that Piersall underwent carpal tunnel release
surgery in May 2017. On examination, Piersall had multiple tender trigger
points in the cervical region, with palpable taut bands of muscle in the
trigger points regions. Referred pain could be reproduced with stimulation
of the trigger points. Cermak recommended trigger point injections. R.
1066-68. Cermak gave Piersall 10 trigger point injections in the cervical,
trapezius, and rhomboid muscles. R. 1068-69.
On July 13, 2017, Piersall saw APN Cermak. He reported neck and
shoulder pain that radiated into his arms and mid back pain. His
medications helped with the pain and he had no side effects. On
examination, Piersall had multiple tender trigger points in the cervical
region, with palpable taut bands of muscle in the trigger points regions.
Referred pain could be reproduced with stimulation of the trigger points.
Cermak recommended trigger point injections. R. 1074-76. On July 13,
2017, Dr. Ricardo Vallejo, M.D., of the Pain Clinic gave Piersall injections in
the SI joint and the trochanteric bursa. R. 1077.
On August 2, 2017, Piersall had an MRI of his lumbar spine. The
MRI showed postsurgical and multilevel degenerative changes in the
lumbar spine with disc herniation seen at L4-L5 and L5-S1. The changes
were similar in extent and distribution to prior exam. R. 1190.
On October 11, 2017, Piersall saw APN Cermak. He reported neck
pain that radiated into his shoulders and low back pain that radiated into his
left thigh. Raising his left arm caused pain in his left shoulder and he had
muscle spasms in his legs and arms. Piersall reported occasional
drowsiness, dizziness, and lack of energy from gabapentin. He also said
the gabapentin was not working. R. 1078. Cermak scheduled a CESI and
increased his Flexeril dosage. R. 1081.
On October 11, 2017, Piersall saw APN Cermak. Piersall reported
neck pain that radiated into his shoulders and low back pain that radiated
into his left thigh. Raising his left arm caused pain in his left shoulder and
he had muscle spasms in his legs and arms. Piersall reported occasional
drowsiness, dizziness, and lack of energy from gabapentin. He also said
the gabapentin was not working. R. 1086. Cermak scheduled a CESI and
increased his Flexeril dosage. R. 1089.
On October 25, 2017, and December 19, 2017, Dr. Francesco Vetri,
M.D., of the Pain Clinic gave Piersall a cervical epidural steroid injection.
R. 1090, 1092.
On January 29, 2018, Piersall saw advanced practice nurse Sheila
Mara, APN, CNP, in the Pain Clinic. He reported 60 percent pain relief
from the October 25 and December 19, 2017 injections. He continued to
have left lower side pain and rated the pain at 8/10. His TENS unit was not
giving much relief. Piersall had spinal and paraspinal tender points and
tenderness on the left side of his SI joint and trochanteric bursa. Mara
noted that Piersall received 50 percent pain relief from the October 15,
2017 injection, 70 percent pain relief from the July 13, 2017 injections, 60
percent relief from the April 13, 2017 injection, and 50 percent relief from
the December 19, 2016 injection. On January 29, 2018, Dr. Rehman gave
Piersall left SI and trochanteric bursa injections. R. 1094-97.
On March 1, 2018, Piersall saw advanced practice nurse Angela
Birdsell, APN, at the Pain Clinic. He reported 60 percent pain relief from
the January 29, 2018 injection and stated he still had some shooting pains
down his left leg but not as often, and the pain was not as intense. He had
pain in his left foot like it was broken and also reported neck pain. He
occasionally had numbness in his left foot if he sat too long. He denied any
side effects from his medications. R. 1098. On examination, Piersall had
cervical and thoracic tenderness to palpation of trigger points. R. 1100.
Birdsell scheduled cervical and thoracic trigger point injections and
continued Piersall’s medications. R. 1101.
On March 22, 2018, Dr. Vetri gave Piersall 12 trigger point injections
along the trapezius, cervical paraspinal, rhomboid, and thoracic paraspinal
muscles. R. 1101-02.
On April 10, 2018, Piersall saw APN Birdsell. He said the trigger
point injections provided 60 percent relief to the middle of his shoulder
blades. He rated his neck pain at 7/10 and said his medications sometimes
caused drowsiness. R. 1102. On examination, Piersall had cervical spinal
and paraspinal tender points. Hoffman’s sign and Spurling’s tests were
both negative.9 He had 5/5 strength throughout his upper extremities. His
sensation in his upper extremities was intact to light touch. R. 1104.
Birdsell reviewed the September 5, 2011 cervical MRI and the January 13,
2016 lumbar MRI. Birdsell scheduled a cervical epidural steroid injection.
R. 1105. On April 24, 2018, Dr. Vetri gave Piersall a cervical epidural
steroid injection. R. 1114-15.
9 Hoffman’s sign is a test for reflexes in the fingertips. Dorland’s, at 1712-13.
On May 8, 2018, Piersall saw advanced practice nurse Birdsell.
Piersall said the April 24, 2018 injection gave him 60 percent relief, and the
relief was still lasting. He reported pain in the back of his neck radiating to
his shoulders and lumbar back pain sometimes radiating to his knees.
Birdsell said Piersall was getting adequate pain relief. R. 1115. On
examination, Piersall weighed 295 pounds and had a BMI of 43.56. R.
1117. Birdsell refilled his prescriptions. R. 1118.
On July 2, 2018, Piersall saw Dr. Oligschlaeger complaining of
palpitations. On examination, Piersall was oriented, had a normal mood
and affect, and had no acute distress. His pulmonary and cardiovascular
exams were normal. Dr. Oligschlaeger ordered an EKG and a 48-hour
halter monitor. R. 1151-52.
On July 6, 2018, Piersall saw APN Birdsell. He rated his pain at 6/10
and complained of neck and shoulder pain. R. 1119. On examination,
Piersall had cervical, facet, and paraspinal tenderness. Hoffman’s and
Spurling’s tests were negative. He had 5/5 strength in his upper
extremities. R. 1121. Birdsell prescribed Lyrica and discontinued the
prescription for gabapentin. She also scheduled a cervical epidural steroid
injection. R. 1122.
On August 3, 2018, Piersall saw APN Birdsell. He reported that the
medications were helping with his pain. He believed Lyrica was helping as
he did not have as much burning pain in the morning. He could “walk” off
some of the pain and reported some drowsiness from the medication. R.
1123. Birdsell renewed his medications. R. 1126.
On August 21, 2018, Piersall Dr. Eliezer Soto, M.D., of the Pain
Clinic, gave Piersall a cervical epidural steroid injection. R. 1134.
On September 5, 2018, Piersall saw APN Birdsell. Piersall said the
August 21 injection gave him 50 percent pain relief for about three to four
days. He looked up quickly on August 25, 2018 and felt a pop in his neck.
He rated his pain at 6/10, but the pain was not constant as it was before.
He said a burning pain in the middle of the neck “comes and goes.” R.
1135. On examination, Piersall had cervical spinal and paraspinal tender
points; Hoffman’s sign and Spurling’s test were negative; he had facet joint
tenderness; his sensation was intact in all his extremities; he had full range
of motion; he had 5/5 strength throughout his upper extremities. R. 1137.
Piersall had no numbness, tingling, or weakness. Birdsell renewed his
prescriptions. R. 1138-39.
On October 4, 2018, Piersall saw APN Birdsell. He rated his pain at
6/10 radiating from his neck to his shoulders and said his medications gave
him 60 percent pain relief. The medications also made him drowsy “but it is
getting better.” R. 1139. Birdsell renewed his prescriptions. R. 1142-43.
The Evidentiary Hearing
On February 14, 2019, the Administrative Law Judge (ALJ)
conducted an evidentiary hearing. R. 688-724. Piersall appeared in
person with his attorney. Vocational Expert Sherman Johnson, Sr., also
appeared. R. 690.
Piersall testified first. He lived with his wife and three sons ages 17,
12, and 11 years in a one-story house without a basement. R. 696-97. He
had a driver’s license and drove his children to and from school every day.
The trip took ten minutes as the school was “like two blocks down the
road.” R. 697. Piersall did not drive long distances because he had
difficulty turning his head from side to side. He said that turning his head
from side to side caused pain to flare up in his neck and shoulders and he
also got a headache when the neck pain flared up. Piersall said that he
turned his whole body to look in another direction, rather than turn his
head, to avoid the pain flare up. R. 698-99.
Piersall said that on a daily basis he woke up at 5:00 a.m. to 6:00
a.m., he performed stretches that he learned in physical therapy sessions,
and then went to the kitchen and made coffee. He had to use both hands
to hold objects like coffee cups because he dropped things “all the time.”
After the coffee was ready, he sat in his lift chair on a heating pad. He
woke his children up at 6:30 a.m. At 7:00 a.m., he started the truck and
drove his children to school. Once back at home, he sat in his lift chair, ate
some toast, and thereafter alternated between sitting and walking. He
occasionally performed more stretches. He made lunch for himself and
picked up his children from school around 3:00 p.m. Once home, Piersall
again alternated between sitting, standing, and walking. He ate dinner with
his family and went to bed about 8:00 p.m. He used to help his children
with homework, but said he could not help once they reached the fifth
grade. R. 700-02. Piersall did not lift any heavy objects at home. His wife
did the laundry. He lifted a gallon of milk with two hands. R. 710. Piersall
used a lift chair instead of a regular recliner because the chair lifted him
and made it much easier to get up. R. 710.
Piersall said he could not work because of his pain and stiffness and
bending and twisting caused his pain to flare up. He said, “I’m just
completely exhausted – by – from just from doing, you know, nothing,
pretty much and just dealing with the pain and trying to get through the
day.” R. 702-03. He said his stiffness caused problems going from sitting
to standing, “Like it’s a rusted bike chain that’s stuck at like a 90-degree
angle, and when I go to stand up, it’s like forcing it to open, more or less.
And that’s kind of what I feel.” Once up, Piersall had to stand for a minute
before he could start walking. He said he held onto walls and countertops
when he walked. R. 711. He did not need a cane, walker, or wheelchair to
ambulate. R. 707.
Piersall testified his inability to grasp objects with one hand started
when he was 20 years old and that he had carpal tunnel syndrome. He
had difficulty holding small objects at work, including a hammer. He said
the problem got worse two years before the hearing. His arms and hands
tingled from the elbow down and he could not feel anything. He also had
cubital tunnel syndrome and had surgery to correct the problem, but he lost
strength in his hands. He could not tell how hard he was squeezing an
object. R. 703-04. Piersall also said that his hands were swollen and
ached all the time. Counsel for Piersall stated that his hands were swollen
at the hearing. R. 708-09.
Piersall could not put on his own socks and his wife put them on for
him. He could reach up to wash his hair and he used a piece of wood with
a puff ball on the end to wash his buttocks in the shower because he could
not reach down that far. R. 711-12.
Piersall said he also had problems with his hips, more on the left side.
He had throbbing, shooting pains into his thigh almost like an electrical
shock. Physical therapy aggravated the pain. R. 705-06.
Piersall’s medications took the edge off the pain, but made him
drowsy. R. 706-07. He said that Dr. Kraus recommended against another
back surgery and told him that surgery would make his condition worse.
Piersall said he was also told there was no surgical options for his neck
pain. He received injections for pain, primarily in his neck. His insurance
would not pay for injections in both his neck and his back. He also used a
TENS unit and an inversion table. He said these treatments gave
temporary relief, “more or less, a Band-Aid for that moment, I guess.” R.
709.
Vocational expert Johnson then testified. Piersall stipulated to
Johnson’s qualifications to testify as an expert. The ALJ asked Johnson
the following hypothetical question:
For the first hypothetical, I'd like you to assume a hypothetical
individual of the Claimant's age, education, and with that past
job we just discussed. Further assume this individual can
perform work at the light exertional level. Can occasionally
climb ladders, ropes or scaffolding, stoop, crouch or crawl. Can
such a hypothetical individual perform any of the Claimant's
past work?
R. 713. Johnson said such a person could not perform Piersall’s past
relevant work. Johnson opined that such a person could perform jobs such
as housekeeping cleaner, with 133,000 such jobs in the national economy;
marker, with 300,000 such jobs in the national economy; and order caller,
with 11,000 such jobs in the national economy. Johnson testified that
person could perform these jobs even if he was further limited to never
climbing ladders, ropes, scaffolding, and to never crawling. Johnson
opined that such a person could still perform these jobs even if he had to
be able to change from sitting to standing up to every 30 minutes at work.
R. 714. The person could also perform these jobs even if he was limited to
frequent reaching, handling, fingering, or feeling with both upper
extremities. R. 715-19.
Johnson opined that a person could not work if he was absent from
work one day a month for three consecutive months. A person could not
work if he needed to take more breaks than the regularly scheduled work
breaks. The person also could not work if he was off task for more than 15
percent of the time at work. R. 720-21. The hearing ended.
THE DECISION OF THE ALJ
On March 11, 2019, the ALJ issued her decision. R. 670-80. The
ALJ followed the five-step analysis set forth in Social Security
Administration Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920.
Step 1 requires that the claimant not be currently engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2
requires the claimant to have a severe impairment. 20 C.F.R. §§
404.1520(c), 416.920(c). If true, Step 3 requires a determination of
whether the claimant is so severely impaired that he is disabled regardless
of his age, education, and work experience. 20 C.F.R. §§ 404.1520(d),
416.920(d). To meet this requirement at Step 3, the claimant's condition
must meet or be equal to the criteria of one of the impairments specified in
20 C.F.R. Part 404 Subpart P, Appendix 1 (Listing). 20 C.F.R. §§
404.1520(d), 416.920(d). If the claimant is not so severely impaired, the
ALJ proceeds to Step 4 of the Analysis.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If
the claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of
presenting evidence and proving the issues on the first four steps. The
Commissioner has the burden at Step 5 to present evidence that,
considering the listed factors, the claimant can perform some type of
gainful employment that exists in the national economy. 20 C.F.R. §§
404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir.
2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
The ALJ found that Piersall met his burden at Steps 1 and 2. He had
not worked from the Onset Date of September 1, 2011 through his Date
Last Insured December 31, 2017. He also suffered from the severe
impairments of degenerative disc disease of the cervical and lumbar spine
with L4-S1 herniations. R. 672.
The ALJ found at Step 3 that Piersall’s impairments or combination of
impairments did not meet or equaled a Listing. The ALJ considered the
former Listing 1.04 for disorders of the spine.10 The ALJ found no medical
evidence of spinal arachnoiditis, muscle atrophy, muscle strength deficits
plus reflex or sensory deficits, or that Piersall was unable to ambulate
effectively. R. 674.
The ALJ then found that Piersall had the following RFC:
5. After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform light
10 Effective April 2, 2021, Listing 1.04 was superseded by new Listing 1.15. The new Listing 1.15 does
not apply here because the new Listing only applies to decisions made by the Commissioner after the
effective date. 85 Fed. Reg. 78164 n.2 (December 3, 2020).
work as defined in 20 CFR 404.1567(b) except he can never
climb ladders, ropes, or scaffolds, or crawl. He can occasionally
stoop and crouch, and work with an option to sit or stand,
changing positions no more frequently than every 30 minutes,
while remaining on task.
R. 674. The ALJ relied on her examination of the medical records. The
ALJ reviewed the x-rays, MRIs, CT scans, and EMG studies. The ALJ
noted that Dr. Kraus advised that Piersall lose weight, stop smoking, and
start exercising, and Piersall did not follow those recommendations. The
ALJ also examined the medical records. The ALJ found the examinations
showed largely normal findings with some exceptions:
The record also reflects, since the alleged onset date, the
claimant's physical examination findings have been largely
within normal limits, except for obesity (with a body mass index
ranging from about 38 to 44), spasms in his neck and back with
a subjective decreased range of motion in his neck and back,
decreased lower extremity reflexes, and subjective tenderness
over his spine and rhomboid, scapular, and trapezius areas
(Ex. 1F-7F, 12F-14F, 16F-21F). The record further reflects,
since the alleged onset date, the claimant has only rather
infrequently exhibited other abnormal findings, such as positive
straight leg raise, wide-based and/or antalgic gait, difficulty
getting on/off the exam table, difficulty tandem walking, inability
to heel and toe walk, inability to squat and hop, decreased
reflex in his upper extremities, increased muscle tone in his
neck and back, positive FABER's/Patrick's tests, and decreased
sensation in the CS dermatome, left hand, and all 5 fingers of
the left hand (Ex. 1F-4F, 6F, 7F, 12F, 18F-21F).
R. 676. The ALJ also noted that the medical records showed no evidence
of “any muscle atrophy or significant deficits in muscle strength, grip
strength, or fine finger manipulative ability.” The ALJ additionally relied on
the fact that Piersall did not use a cane, walker, or wheelchair to ambulate.
The ALJ relied on the fact that the EMG study of the lower extremities was
normal, and the EMG study of the upper extremities showed no evidence of
cervical radiculopathy. R. 676-77.
The ALJ relied on Dr. Kraus’ opinion in May 2012 that Piersall could
lift 25 pounds. The ALJ also relied on the opinions of Drs. Arjmand and
Kim. The ALJ found greater restrictions in Piersall’s RFC than reflected in
the opinions of Drs. Arjmand and Kim because the two state agency
doctors did not consider all the evidence in the file. R. 677.
The ALJ did not give any weight to the Hartford insurance company
determination that Piersall qualified for long term disability benefits from his
work. The insurance company only found that Piersall met the insurance
policy’s definition of disabled, not the definition under the Social Security
Act and regulations. R. 677.
The ALJ did not give weight to Dr. Gregory’s opinion that Piersall
could not drive because he was using opioid pain medication. The ALJ
noted that Piersall drove his children to and from school every day without
difficulty. R. 677-78.
The ALJ did not give weight to Dr. Oligschlaeger’s May 2016 opinion
that Piersall would miss two or more days of work per month. The ALJ said
that Dr. Oligschlaeger did not provide any explanation for why Piersall
would miss two days of work per month. The ALJ agreed with Dr.
Oligschlaeger’s opinion that Piersall did not meet Listing 1.04 but noted that
Dr. Oligschlaeger relied on the fact that Piersall could do some walking but
did not define what he meant by the term “some” walking. R. 678.
The ALJ did not give great weight to Piersall’s statements about the
effect of his symptoms. The ALJ found that the statements were not
consistent with the medical evidence. The ALJ also noted that Piersall
worked for 10 years with the back pain before the Onset Date. The ALJ
also found that Piersall’s testimony about his symptoms was not consistent
with evidence in the Function Report that he performed household chores,
gave his children baths, fished twice a month, and built radio-controlled
cars once a month. R. 676.
After determining the RFC, the ALJ found that Piersall met his burden
at Step 4. The ALJ found that Piersall could not perform his past relevant
work. The ALJ relied on the RFC determination and the opinions of
vocational expert Johnson. R. 678.
At Step 5, the ALJ found that Piersall could perform a significant
number of jobs that existed in the national economy. The ALJ relied on the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2;
the RFC determination; and the opinions of vocational expert Johnson that
a person with Piersall’s age, education, work experience, and RFC could
perform representative jobs of housekeeping cleaner, marker, and order
caller. R. 678-79. The ALJ concluded that Piersall was not disabled from
the Onset Date through the Date Last Insured. R. 680
Piersall appealed administratively. On October 21, 2020, the Appeals
Council found no basis to assume jurisdiction over this appeal. The
decision of the ALJ then became the final decision of the Defendant
Commissioner. R. 660-61. Piersall then filed this action for judicial review.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate”
to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence and may not substitute its judgment or reweigh the evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the ALJ’s evaluation
of statements regarding the intensity, persistence, and limiting effect of
symptoms unless the evaluation is patently wrong and lacks any
explanation or support in the record. See Pepper v. Colvin, 712 F.3d 351,
367 (7th Cir. 2014); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008);
SSR 16-3p, 2017 WL 5180304, at *1 (October 25, 2017) (The Social
Security Administration no longer uses the term credibility in the evaluation
of statements regarding symptoms). The ALJ must articulate at least
minimally her analysis of all relevant evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994). The ALJ must “build an accurate and logical
bridge from the evidence to her conclusion.” Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000).
The ALJ’s decision in this case was supported by substantial
evidence. The ALJ expressly considered the material evidence, including
the medical evidence that contained abnormal findings such as positive
straight leg raising, etc. The ALJ also expressly considered all the imaging
and EMG studies. The ALJ explained why she concluded the evidence as
a whole demonstrated that Piersall was limited to a narrow range of light
work but did not show greater limitations. This Court reversed the prior
decision of the ALJ in 2016 because the ALJ did not discuss medical
evidence that showed abnormal findings. See 2018 Opinion, at R. 930-32.
The ALJ corrected this error and explained her reasoning adequately. A
reasonable person might accept the evidence on which the ALJ relied as
adequate, and so, the decision was supported by substantial evidence.
Richardson v. Perales, 402 U.S. at 401.
Piersall argues that the ALJ failed to follow the admonition in the
2018 Opinion to address the abnormal findings in the medical evidence.
The Court disagrees for the reasons discussed above. The ALJ minimally
articulated her analysis of the relevant evidence including the abnormal
findings.
Piersall argues the ALJ erred by finding that Piersall had infrequent
medical treatment. The ALJ made no such finding. The ALJ found that
Piersall “rather infrequently exhibited other abnormal findings,” (as quoted
above), but the ALJ did not find that Piersall had infrequent medical
treatment. The argument, therefore, is unpersuasive.
Piersall argues that the ALJ erred by finding that the “absence of
muscle wasting as being determinative of a lack of symptomology.” Brief in
Support of Plaintiff’s Motion for Summary Judgment (d/e 16), at 39. The
ALJ again made no such finding. The ALJ mentioned that the medical
record contained no evidence of muscle atrophy as one factor among
many. R. 676. The ALJ did not find that a lack of muscle wasting, by itself,
was determinative, so this argument is also unpersuasive.
Piersall also quotes extensively from a Steve S. v. Saul, 2020 WL
4015332 (N.D. Ill. July 16, 2020). The Northern District in Steve S. found
that the ALJ did not adequately articulate his analysis of whether the
claimant’s impairments met Listing 1.04. Id. at *4. Here, the evidence
clearly supported the ALJ’s finding that Piersall’s spinal impairments did not
meet or equal former Listing 1.04. Listing 1.04 provided:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-
anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively, as
defined in 1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1 Listing 1.04. To meet or equal
Listing 1.04 (A), Piersall needed evidence that he had pain and motor loss
and either sensory loss or reflex loss. He had no evidence of motor loss
and little or no evidence of sensory loss or reflex loss. To meet Listing
1.04(B), Piersall needed specific types of evidence of spinal arachnoiditis.
He had no such evidence. To meet Listing 1.04(C), Piersall needed
evidence that he could not ambulate effectively. He walked without a cane
or walker. Piersall had no evidence that he met or equal Listing 1.04. The
Steve S. case does not apply.
Piersall last asks the Court to award benefits. The request is denied
because the decision of the ALJ was supported by substantial evidence.
THEREFORE, IT IS ORDERED THAT the Defendant Acting
Commissioner’s Motion for Summary Affirmance (d/e 21) is ALLOWED;
Plaintiff Bradley J. Piersall’s Motion for Summary Judgment (d/e 15) is
DENIED, and the decision of the Defendant Acting Commissioner is
AFFIRMED. THIS CASE IS CLOSED.
ENTER: March 23, 2022
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE