Dennis Johnson v. Commissioner of Social Security

535 F. App'x 498
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 15, 2013
Docket12-2249
StatusUnpublished
Cited by57 cases

This text of 535 F. App'x 498 (Dennis Johnson v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis Johnson v. Commissioner of Social Security, 535 F. App'x 498 (6th Cir. 2013).

Opinion

OPINION

JANE B. STRANCH, Circuit Judge.

Claimant Dennis Johnson applied for disability insurance benefits. After his application was denied by the state disability determination service, an administrative law judge (ALJ) determined that Johnson was not disabled. The appeals council denied Johnson’s request for review. Johnson subsequently sought judicial review of the ALJ’s decision in district court. The district court affirmed the denial of benefits, and Johnson now appeals. For the following reasons, we AFFIRM.

I. Background 1

Beginning in the late 1980s, claimant Dennis Johnson sought treatment at the Department of Veterans Affairs (VA) for low back pain and right leg radiculopathy. In January 2002, Johnson injured his back while working as a baggage handler and has not worked since his injury. 2 A few days after his accident, Johnson saw Dr. David Pommerening. His patient statement indicated that he hurt his leg while carrying luggage, but Dr. Pommerening noted that the pain was located in the right *500 sacral region. Johnson had numbness in several of his right toes, and the pain radiated down his right leg. He also had a positive straight-leg raise on the right side. Johnson exhibited tenderness at the right sacrum and decreased range of motion and an X-ray showed narrowing of the L4-L5 and L5-S 1 disc space. Dr. Pommerening recommended physical therapy and medication.

On January 11, 2002, Johnson saw Dr. Pommerening again, and reported that while medications improved his pain, his one session of physical therapy did not make him feel better. At that time, Johnson’s straight-leg raises were negative. He was instructed to avoid excessive bending, squatting, kneeling, standing, or walking; and to avoid lifting over 10 pounds. He was also prescribed pain medication. On January 16, Johnson reported improvement, and his restrictions were changed somewhat. Johnson appears to have engaged in physical therapy on January 15 and 16.

On January 21, Johnson saw Dr. Pom-merening and reported that his symptoms had worsened. Johnson again had a positive leg raise on the right, tenderness on the lower spine, and decreased range of motion. Dr. Pommerening prescribed additional medication and referred Johnson to a physiatrist. Johnson went to Dr. Aaron Sable, who found no radiculopathy but noted discomfort and reduced range of motion. Johnson experienced slight discomfort in the straight-leg raise to the right. Dr. Sable recommended physical therapy, prescribed several medications, and suggested an MRI. He also recommended restrictions on certain physical movements — such as sitting, standing, and walking — and that Johnson avoid lifting over 10 pounds. An MRI revealed a disc herniation at L5-S1 and a mild disc displacement at L4-L5 with “mild leftward proximal L5 root sleeve effacement.”

On April 20, 2002, Johnson was examined by Dr. Phillip F. Krogol, a neurosurgeon who found Johnson was experiencing “moderate discomfort” and his gait was affected on the right side. He also noted limits in Johnson’s range of motion, tenderness, and pain with straight-leg raises on the right and diagnosed “[l]umbar myo-fascitis with radiculitis secondary to herniated disc L5-S 1 on the right.” Dr. Kro-gol recommended that Johnson continue physical therapy as directed by his treating physician, Dr. Poling, but noted that surgery would be an option if he did not improve.

Nerve conduction tests performed in May 2002 were within normal limits. A second MRI taken in October 2002 revealed a “narrowing and desiccation of L4-5 and L5-S1 discs” and a “[e]entral disc herniation at L4-5 ... extending] slightly more prominently to the right of midline [that] does encroach upon the proximal portion of the right neural foramen at this level.” A third MRI from February 2004 showed mild disc space narrowing, mild circumferential disc bulging at L4-L5, as well as mild disc space narrowing and “a large central right paracentral” herniation with “mild SI nerve root edema.”

In May 2004, Johnson was examined by Dr. Norman J. Rotter, a neurologist. Johnson’s gait was normal, he had minimal low back tenderness, his range of motion was mildly limited, and his strength and coordination were good. Straight-leg raises on the right produced “radicular type findings,” and Dr. Rotter discussed the option of surgery. Dr. Fred Junn, another neurologist, also consulted on this referral. He was uncertain that surgery was the best option, but noted that it might be in order should Johnson’s condition progress. *501 Rather than undergo surgery, Johnson decided to consider his options further.

In April 2006, a new MRI of Johnson’s spine was compared with an older one. The findings appeared relatively similar. Dr. Poling referred Johnson to pain management that month. At that time, he did not use an assistive device for ambulation and reported taking narcotic pain relievers and medication for panic disorders and depression. Johnson’s straight-leg raise on the right was “mildly positive” and his muscle strength was 5/5. His range of motion in the lumbar spine was slightly diminished, but there was no tenderness. Based on Johnson’s symptoms, the recommended treatment plan was a series of three epidural steroid injections. Although the first two provided some relief, Johnson decided to wait on the third because he had recently had a reaction to a drug he was taking for depression.

In October 2006, Dr. Poling referred Johnson to Dr. Teck Mun Soo, a neurological surgeon. At that time, Johnson rated his pain as an 8/10 for his back and a 7/10 for his leg and reported taking narcotic medication for pain and anxiety medication. Johnson’s lumbar spine was not tender; there was a normal range of motion; and his straight-leg raises were negative on both sides. Dr. Soo recommended an L4-S1 lumbar fusion that Johnson wanted to think about. On March 29, 2007, Dr. Poling examined Johnson and identified a decreased range of motion. He provided an April 5 letter stating the following work restrictions: (1) no lifting over 10 pounds; (2) no excessive standing, sitting, or bending; and (3) Johnson should be allowed to lie down as needed to relieve pain.

On September 4, 2007, Johnson was evaluated by Dr. Rojas, an internist, for the Michigan Disability Determination for Social Security Administration. Johnson reported that he had been using a cane for around eighteen months. Dr. Rojas noted Johnson’s mobility was slightly impaired and that his lumbar area was moderately tender and diagnosed chronic low back pain due to degenerative disc disease and a herniated disc at L5-S1 with radiculopathy on the right side. Johnson was also evaluated by a psychiatrist, Dr. Ibrahim Yous-sef, on that same day. Dr. Youssef diagnosed Johnson as suffering from PTSD, depression, and assessed a Global Assessment of Functioning (GAF) of 45 to 50. He evaluated Johnson’s prognosis as “[gjuarded due to the chronicity” of his condition.

II. Administrative Proceedings

In May 2007, Johnson filed an application for disability insurance benefits and in a June 2007 disability report, noted his use of pain and sleep medication. He stated that he used a cane, could not be on his feet for more than 30 minutes, and could walk one block before he needed to stop and rest.

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535 F. App'x 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-johnson-v-commissioner-of-social-security-ca6-2013.