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Benefits Denied for Back Pain and COPD; Man Could Work; Man Continued to Smoke


A man applied for disability insurance benefits (DIB) and supplemental security income (SSI) due to emphysema, low back pain, and neck pain.

 

About three weeks after the man applied for DIB and SSI, the man underwent a neurosurgical evaluation of his chronic low back and right leg pain with a nurse practitioner. At this evaluation the man denied chest pain and shortness of breath.

 

About a month after the man applied for DIB and SSI, a state agency medical consultant reviewed the man’s medical records and determined the man was able to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently, sit for six hours during an eight-hour day and stand and/or walk for six hours during an eight-hour day. Based upon the medical records and the activities of daily living, the state agency medical consultant determined the man could perform work at the light exertional level. A second state agency medical consultant reviewed the man’s medical records and affirmed the first state agency medical consultant's findings.

 

About six weeks after he applied for DIB and SSI, the man underwent an MRI. A neurosurgeon reviewed the MRI and found that it showed degenerative disc disease at L1–2, L2–3, mild broad based disc bulges at L2–3, L3–4, and a left lateral disc protrusion at L3–4 with possible L3 nerve root effacement. The results showed no high grade spinal canal stenosis, high grade foraminal stenosis, focal disc herniation, or significant nerve root involvement, in accordance with the man's presenting complaints. The man's plan of care included physical therapy and traction, epidural injection therapy, continued us of Mobic, weight loss, stretch, proper posture, and diet.

 

About six and a half months after the MRI, the man presented at the emergency room due to abdominal pain. During the examination, the man denied shortness of breath and back pain and indicated he had smoked one pack of cigarettes a day for thirty years.

 

At the man's follow-up appointment with the neurosurgeon about seven months after the MRI, it was noted that physical therapy had not produced good results and the epidural steroid injection was cancelled due to a meningitis scare. A review of the man's symptoms showed intermittent numbness in his right lower extremity, a burning dysesthesia type of pain and emphysema. At the time of the follow-up, the man was taking Phenergan and Albuterol, his gait and station were normal, and he had negative straight-leg raising tests on both legs. The man experienced no pain with internal or external rotation of the hips; however he had limited movement with flexion and extension of the lumbar spine. The neurosurgeon found no palpable tenderness over the sacroiliac joint or cervical vertebra and assessed the man with low back pain with sciatica, degeneration, intervertebral disc, lumbar, and lumbago. In reviewing the MRI, the neurosurgeon found the man's degenerative disc disease changed with mild disc bulges at L2–3, L3–4 and L4–5, with no nerve root compression or thecal sac compression, a small lateral disc protrusion at the L3–4 level, and determined the foramen might cause pressure on the left L3 nerve root. The neurosurgeon ordered the man to undergo smoking cessation education, prescribed Naprosyn, Robaxin, and Hydrocodone–Acetaminophen and ordered the man not to lift more than 30 pounds and only occasionally: twist, bend, kneel, or stoop. No surgical intervention was recommended.

 

The man’s applications were denied initially and on reconsideration. The man then requested an administration hearing, which was held in front of Administrative Law Judge (ALJ). The ALJ found the man's disorder of the back severe. The ALJ found the man's chronic obstructive pulmonary disease (“COPD”), right upper quadrant abdominal pain, nephrolithiasis, and gallbladder contraction non-severe, as they did not cause more than minimal limitation in his ability to do basic work-like tasks. The ALJ concluded the man was not disabled, and that the man had the residual functional capacity to perform light work, except he could only occasionally climb, balance, stoop, kneel, crouch, or crawl.

 

The man filed suit in the United States District Court for the Western District of Arkansas seeking judicial review of the decision of the Commissioner of the Social Security Administration denying his claim for DIB and SSI.

 

The magistrate judge for the United States District Court for the Western District of Arkansas recommended affirming the Commissioner's denial of the man’s application for DIB and SSI and dismissing the man’s complaint with prejudice. The court held that substantial evidence supported the ALJ's determination that the man’s degenerative disc disease did not meet the criteria for the listing set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04, and substantial evidence supported the ALJ's determination that the man’s COPD was not severe.

 

Substantial evidence supported the ALJ's determination that the man’s degenerative disc disease did not meet the criteria for the listing set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. The ALJ determined that the man’s medical records did not demonstrate that the man had a compromised nerve root or spinal cord with evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication. In order for an applicant to meet the listing, the applicant must show 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). The man’s MRI indicated he had possible nerve root effacement at L3, and no high grade spinal canal stenosis, high grade foraminal stenosis, focal disc herniation, and or significant nerve root involvement. The most recent straight leg raise test was negative for both legs. The man’s neurologist reviewed the MRI of the lower spine and determined the man's degenerative disc disease changed with mild disc bulges at L2–3, L3–4 and L4–5, but the MRI showed no evidence of root compression or thecal sac compression. Although the neurologist noted that a small lateral disc protrusion at the L3–4 level might cause pressure on the left L3 nerve root, the court had held previously that when a medical report indicates that a nerve root “may be” contacted or compressed, it did not establish a compromise of the nerve root. The court reasoned that the medical records did not indicate that the man had nerve root compression, thus the man's degenerative disc disease did not meet the listing requirements. The court concluded, based on the medical evidence and medical diagnostic testing, substantial evidence existed to support the ALJ's finding that the man's degenerative disc disease did not meet or medically equal the listing in § 1.04(A).

 

Substantial evidence supported the ALJ's determination that the man’s COPD was not severe. A severe impairment is defined as one that significantly limits the claimant's physical or mental ability to do basic work activities. The impairment must result from anatomical, physiological, or psychological abnormalities that can be shown by medically accepted clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by the claimant's statement of symptoms. Alleged impairments may not be considered severe when they are stabilized by treatment and otherwise are generally unsupported by the medical record. The ALJ determined the man's COPD did not cause more than a minimal limitation on his ability to do basic work-like tasks. The ALJ based this determination on the man's testimony regarding playing and singing in a band in venues where smoking occurred, the man’s testimony that he could walk a couple of blocks before stopping to catch his breath, and the medical records that showed the man denied shortness of breath or chest pain at his neurosurgical evaluation of chronic low back and right leg pain with a nurse practitioner. The court noted that the record was devoid of pulmonary tests, environmental limitations, complaints of shortness of breath or asthmatic symptoms, dyspnea on exertion, cough, wheezing, sputum production, hemoptysis, and chest pain, which are used to determine the severity of COPD. The man’s COPD was mentioned in medical records as past medical history and during the follow-up appointment with the neurosurgeon along with a notation that he took Albuterol. The court reasoned that the man’s COPD must not have been as severe as he alleged because he denied shortness of breath or chest pain at his neurosurgical evaluation of chronic low back and right leg pain with a nurse practitioner and he denied shortness of breath when he presented at the emergency room due to abdominal pain. The court expected to see more medical evidence regarding the treatment of COPD if the impairment was severe. While the man indicated he used an Albuterol inhaler, there was no medical evidence submitted during the relevant time period prescribing an inhaler for his COPD. The neurosurgeon included emphysema in his review of the man’s symptoms at the follow-up appointment. However he did not note any issues with regard to heavy breathing, asthmatic symptoms and shortness of breath, or coughing during the examination. The court also noted that the man testified he played and sang in a band in venues where smoking occurred and he continued to smoke after being counselled on cessation.

 

The magistrate judge for United States District Court for the Western District of Arkansas recommended affirming the Commissioner's denial of the man’s application for DIB and SSI and dismissing the man’s complaint with prejudice.

 

See: Storey v. Colvin, 2015 WL 2126985 (W.D.Ark., May 6, 2015) (not designated for publication).

 

See also Medical Law Perspectives, April 2015 Report: COPD Liability Risks: When Taking a Breath Is Not Easy

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation 

 

 

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