Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mark Anthony ERB v. Colvin

United States District Court, E.D. Michigan, Southern Division

January 29, 2015

MARK ANTHONY ERB, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION[1]

PATRICIA T. MORRIS, Magistrate Judge.

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the Commissioner's determination that Plaintiff is not disabled. Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment be DENIED and that Defendant's Motion for Summary Judgment be GRANTED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference, this case was referred to the undersigned to review the Commissioner's decision denying Plaintiff's claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act 42 U.S.C. § 401-34. The matter is currently before the Court on cross-motions for summary judgment. (Docs. 10, 14.)

This is Plaintiff Mark Anthony Erb's second DIB application. (Tr. at 13, 61.) His first, filed on January 8, 2010, alleged that his disability began on August 27, 2009. (Tr. at 61.) The Commissioner initially denied the claim on March 23, 2010, and after a hearing in front of administrative law judge ("ALJ") Dennis M. Matulewicz, the Commissioner made her final decision denying benefits on November 17, 2010. (Tr. at 13, 68.) The Appeals Council declined to review that decision, on February 15, 2012. (Tr. at 83.)

Plaintiff then filed the present DIB claim on May 17, 2011, alleging that his disability began on November 18, 2010, the day after the prior final decision. (Tr. at 137.) In denying the claim, the Commissioner considered inflammatory bowel disease and "[o]steoarthrosis and [a]llied [d]isorders." (Tr. at 82.) Plaintiff requested a hearing and on June 19, 2012 he appeared before ALJ Martha Gasparovich, who considered the application de novo. (Tr. at 27-57.) The ALJ issued a written decision on August 10, 2012, finding that Plaintiff had not presented any "new and material evidence" showing that his condition had worsened since the prior final decision. (Tr. at 13.) Thus, the ALJ concluded that she was bound by the final decision, and found he was not disabled. (Tr. at 13, 20.)

Plaintiff requested review of the decision on August 21, 2012. (Tr. at 9.) The ALJ's decision became the Commissioner's final decision, see Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on September 26, 2013, when the Appeals Council denied Plaintiff's request for review. (Tr. at 1-4.) On November 21, 2013, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision. (Compl., Doc. 1.)

B. Standard of Review

The Social Security system has a two-tiered structure in which the administrative agency handles claims and the judiciary merely reviews the factual determinations for substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The administrative process provides multiple opportunities for reviewing the state agency's initial determination. The plaintiff can first appeal the decision to the Social Security Agency, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142 (1987). Once this administrative process is complete, an unsuccessful claimant may file an action in federal district court. Sullivan v. Zebley, 493 U.S. 521, 524-28 (1990), superseded by statute on other grounds, Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986) (en banc).

This Court has original jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final administrative decision. The statute limits the scope of judicial review, requiring the Court to "affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.'" Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). See also Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). The court's review of the decision for substantial evidence does not permit it to "try the case de novo, resolve conflicts in evidence, or decide questions of credibility.'" Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). See also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

"It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). See also Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the "ALJ's credibility determinations about the claimant are to be given great weight, particularly since the ALJ is charged with observing the claimant's demeanor and credibility'" (quoting Walters, 127 F.3d at 531 ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among medical reports, claimant's testimony, and other evidence."))); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) ("[A]n ALJ is not required to accept a claimant's subjective complaints and may... consider the credibility of a claimant when making a determination of disability."). "However, the ALJ is not free to make credibility determinations based solely on an intangible or intuitive notion about an individual's credibility.'" Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186, at *4).

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner's decision merely because it disagrees or because "there exists in the record substantial evidence to support a different conclusion.'" McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). See also Mullen, 800 F.2d at 545. The court can only review the record before the ALJ. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Substantial evidence is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). See also Jones, 336 F.3d at 475. "[T]he... standard is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Longworth, 402 F.3d at 595 (quoting Warner, 375 F.3d at 390). "The substantial evidence standard presupposes that there is a "zone of choice"' within which the Commissioner may proceed without interference from the courts." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).

A court's review of the Commissioner's factual findings for substantial evidence must consider the evidence in the record as a whole, including that evidence which might subtract from its weight. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). "Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing court discuss every piece of evidence in the administrative record. Van Der Maas v. Comm'r of Soc. Sec., 198 F.Appx. 521, 526 (6th Cir. 2006); Kornecky v. Comm'r of Soc. Sec., 167 F.Appx. 496, 508 (6th Cir. 2006) ("[A]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.'" (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999))).

C. Governing Law

"The burden lies with the claimant to prove that she is disabled.'" Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010) (quoting Foster, 279 F.3d at 353). Accord Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994)). There are several benefits programs under the Act, including the DIB program of Title II, 42 U.S.C. §§ 401-434, and the Supplemental Security Income ("SSI") program of Title XVI, 42 U.S.C. §§ 1381-1385. Title II benefits are available to qualifying wage earners who become disabled prior to the expiration of their insured status; Title XVI benefits are available to poverty-stricken adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have different eligibility requirements, "DIB and SSI are available only for those who have a disability.'" Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). "Disability" means inability

to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Commissioner's regulations provide that disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments that "significantly limits... physical or mental ability to do basic work activities, " benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that plaintiff can perform, in view of his or her age, education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston, 245 F.3d at 534. "If the Commissioner makes a dispositive finding at any point in the five-step process, the review terminates." Colvin, 475 F.3d at 730.

"Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work." Jones, 336 F.3d at 474. See also Cruse, 502 F.3d at 540. The burden transfers to the Commissioner if the analysis reaches the fifth step without a finding that the claimant is not disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that "other jobs in significant numbers exist in the national economy that [the claimant] could perform given her RFC [residual functional capacity] and considering relevant vocational factors." Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

The first ALJ, analyzing Plaintiff's 2010 application, applied the Commissioner's five-step disability analysis to Plaintiff's claim and found at step one that Plaintiff met the insured-status requirements through December 31, 2013, and had not engaged in substantial gainful activity since August 27, 2009, the alleged onset date. (Tr. at 63.) At step two, the ALJ concluded that Plaintiff had the following severe impairments: "[C]rohn's disease and pancreatitis; chronic diarrhea; colitis; spondyloarthropathy; rheumatoid arthritis/polyneuropathy; diabetes; back pain (lumbago); obesity; alcohol abuse; and nicotine dependence." ( Id. ) At step three, the ALJ found that Plaintiff's combination of impairments did not meet or equal any of the listings in the regulations. ( Id. ) The residual functional capacity ("RFC") assessment indicated that Plaintiff could perform a limited range of "light work, " a specific regulatory category. (Tr. at 63-64); 20 C.F.R. § 404.1567(b). At step four, the ALJ found that Plaintiff could perform his past relevant work as a warehouse supervisor. (Tr. at 66.) The dispositive finding at step four ended the analysis.

In the present claim, the ALJ noted that Sixth Circuit precedent required him to adopt various prior findings if "new and material evidence" failed to show Plaintiff's condition worsened after the first decision. (Tr. at 13.) See Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997); Dennard v. Sec'y of Health & Human Servs., 907 F.2d 598 (6th Cir. 1990). Determining that such evidence did not exist, the ALJ adopted findings concerning "the claimant's past relevant work as well as the finding of the claimant's date of birth, education, and work experience, " and also the previous RFC. (Tr. at 13.)

Accordingly, he found at step one that Plaintiff met the insured-status requirements through December 31, 2014 and had not participated in substantial gainful activity since the new onset date, November 18, 2010. (Tr. at 15.) The ALJ's step-two list of severe impairments changed only slightly: Plaintiff's alcohol abuse was now in remission and he no longer had nicotine dependence; but he suffered from anal-rectal abscesses. (Tr. at 16.) The RFC remained the same. (Tr. at 16.) The step-three listing analysis likewise found that Plaintiff's impairments, alone and combined, did not meet or equal a listed impairment. ( Id. ) At step four, the ALJ incorporated vocational expert ("VE") testimony that Plaintiff could not perform any of his past relevant work, but also accepted the VE's conclusion that Plaintiff had acquired work skills from his past jobs. (Tr. at 19.) These skills were transferable to jobs existing in significant numbers in the national economy, and thus the ALJ concluded at step five that Plaintiff could work and was not disabled. (Tr. at 20.)

E. Administrative Record

1. Medical Records

Dr. Gary Jasbeck, Plaintiff's primacy care physician, began seeing Plaintiff in January 2004. (Tr. at 614.) His earliest relevant records cover prescription refills in November and December 2010, indicating that Dr. Gary Jasbeck was treating Plaintiff for pancreatitis, edema, gastrointestinal bleeding, and hypertension. (Tr. at 670-74.) In January 2011, Dr. Jasbeck referred Plaintiff to gastroenterologist Robert Stoler, (Tr. at 669), and rheumatologist Martin Garber, (Tr. at 668). Shortly after, Dr. Stoler ordered a colonoscopy; the results confirmed chronic colitis. (Tr. at 548.)

On December 16, 2010, Plaintiff visited Dr. Garber. (Tr. at 723.) The notes are brief, stating only that Plaintiff complained of persistent low back and knee pain, and had been taking Vicodin. ( Id. ) Next month, on January 7, Plaintiff returned for an evaluation of his arthropathy, which Dr. Garber noted was related to his Crohn's disease. ( Id. ) His right knee and both elbows ached, unrelieved by Humira, which Plaintiff thought no longer helped. ( Id. ) The notes state that Dr. Jasbeck had recently prescribed Neurontin "[b]ecause of the possibility of fibromyalgia.'" ( Id. ) That helped him sleep but left the pain and fatigue unresolved. ( Id. ) Plaintiff informed Dr. Garber that he sought disability benefits. ( Id. )

The examination results from that visit were largely normal; Plaintiff did not have any joint synovitis, his elbows had a full range of motion, but showed "some... epicondyles tenderness without associated swelling, " his right knee had "some crepitus and decreased flexion" but no joint effusion, his left knee had a full range of motion, and his legs were free of edema. ( Id. ) Dr. Garber stated that the back pain and other symptoms could relate to fibromyalgia, but he did not see any evidence of "active inflammatory joint disease" and instead thought it "very likely that his low back pain [was] secondary to mechanical back problems, possibly related to his significant obesity, less likely [to] lumbar canal stenosis." ( Id. ) The knee pain likely resulted from his "previously documented osteoarthritis." ( Id. ) Dr. Garber thought the high risk of narcotic dependency counseled against their use. ( Id. ) Instead, he prescribed physical therapy and switched his Neurontin prescription to Lyrica. ( Id. ) He also noted that Plaintiff had "employed a dietitian" to aid his weight loss. ( Id. )

Dr. Jasbeck examined Plaintiff in January, focusing on his diabetes, hypertension, and hyperlipidemia. (Tr. at 662.) Plaintiff complained that the diabetes, which he had for years, was increasingly affecting him, causing excessive thirst, frequent urination, growing fatigue, and irritability. ( Id. ) His hands were not numb, however, and he denied blurred vision or burning sensations. ( Id. ) His hypertension, also a long-term impairment, was "currently stable, " the physician wrote. ( Id. ) Tremors accompanied the hypertension, but he experienced no other symptoms. ( Id. ) The hyperlipidemia was fairly "controlled, " though his lifestyle-obesity, poor diet, lack of exercise-hindered further improvement. ( Id. ) Dr. Jasbeck observed that Plaintiff made "minimal" effort to clean up his diet and no effort at all to exercise, and recommended he try to improve in these areas. ( Id. )

Dr. Jasbeck then began the examination. (Tr. at 663.) Plaintiff professed fatigue; other systems were not symptomatic; he experienced no chest pain, malaise, night sweats, or visual issues. ( Id. ) He had a "[l]ong standing [sic] history of diarrhea and fitula that [he] is looking at getting repaired, " and also had rheumatoid arthritis, which he treated with "multiple medications." (Tr. at 663-64.) The list of chronic conditions included, among others, alcohol abuse, [2] anal fistulae, "[b]enign hypertension, " Crohn's disease, hyperlipidemia, lumbago, and diabetes. (Tr. at 664.) He was married with two children, had pet cats, and was moderately active. ( Id. ) The physical examination found all measures normal. (Tr. at 665.) Dr. Jasbeck wrote that Plaintiff had the "ability and willingness to enact [a] treatment plan" for his diabetes. ( Id. ) Laboratory tests ordered during the session, (Tr. at 658-60), came back normal, except his high-density lipoprotein ("HDL"), or "good cholesterol, " was low. (Tr. at 658.) Dr. Jasbeck called Plaintiff with the results, again reiterating the need for a healthy diet and weight loss. (Tr. at 653.)

Plaintiff saw Dr. Stoler on January 26, 2011. (Tr. at 718.) Dr. Stoler wrote that Plaintiff had Crohn's disease since 2004 and was hospitalized in 2009 for abdominal pain; he suspected that the mix of alcohol and medication caused the episode. ( Id. ) A December 2009 colonscopy revealed mild colitis in the colon, not the rectum, and did not uncover a fistula. ( Id. ) Contemporaneous biopsies confirmed "minimally active chronic muscosal colitis" in the colon, "[m]inimally active chronic mucosal procitis" in the rectum, and "quiescent chronic muscosal colitis in the cecum." ( Id. ) During this period, the notes state, Dr. Robert Cleary was treating Plaintiff for "chronic anorectal fistulae" and an anal abscess; Plaintiff never followed up with the recommendation that he undergo an anaesthetized examination. ( Id. ) The perianal pain and "subjective swelling continued, " and pads managed to contain the perianal drainage. ( Id. ) Plaintiff did not exercise, he reported. ( Id. ) Dr. Stoler did not think Plaintiff's chronic diarrhea could be completely explained by proctocolitis "given [the] last colonoscopy, " and instead believed that Plaintiff's diet, diabetes, and prior alcoholism all played a role. ( Id. )

Plaintiff returned to Dr. Cleary in February 2011. (Tr. at 541.) The session notes reflect that Plaintiff had "a chronic left ischioanal abscess and [Dr. Cleary] offered him exam [sic] under anesthesia in December 2009, but he did not follow through with this." (Tr. at 541.) During that February visit, Plaintiff stated he stopped drinking alcohol in November 2010 and cut his smoking to three cigarettes per day. ( Id. ) Plaintiff exercised two to three times per week, riding a bicycle or walking. (Tr. at 542, 599, 601.) His chief complaint was his Crohn's disease, first diagnosed in 2004, he explained, when anorectal issues initially manifested. ( Id. ) One effect was frequent bowel movements, approximately five to six times every day. ( Id. ) According to Dr. Cleary, Plaintiff appeared "a little bit more willing at this time" to consider an examination of the ischioanal abscess. ( Id. ) The review of systems was normal; in particular, Plaintiff denied back pain, frequent urination, abdominal pain, bloody stools, and diarrhea. (Tr. at 542, 602.) The physical examination was similarly unremarkable except for Plaintiff's rectum. (Tr. at 543, 603.) Dr. Cleary observed external hemorrhoids, abscess, and chronic induration, or hardened skin; but the area was not tender. ( Id. ) Plaintiff said the abscess "drain[ed] purulent material on a daily basis, " which Dr. Cleary thought likely were produced from "an internal opening inside the anus, " and Plaintiff requested treatment. (Tr. at 544, 604.) They discussed a drainage procedure and Dr. Cleary provided educational materials. (Tr. at 544, 600, 604.)

The following week, Dr. Stoler performed a sigmoidoscopy, investigating the inflamation in Plaintiff's rectum. (Tr. at 539, 598.) He observed the edema, erosions, granularity, and abscess. ( Id. ) The notes compared the findings with colonoscopy records from December 2009, which found colitis but determined that it did not significantly impair the rectum. ( Id. ) Now, however, Dr. Stoler thought that his condition had "worsened compared to previous examinations." ( Id. ) They planned surgery, followed by medications and vigilant monitoring. ( Id. )

On the morning of February 11, 2011, Plaintiff arrived at the hospital for the surgical drainage procedure. (Tr. at 364-536.) He was examined prior to the operation without any significant findings, informing the surgeon that he remained unchanged since the last examination. (Tr. at 399.) He remained sober, he informed the examiner, but still smoked. (Tr. at 382, 384, 397.) Both before and after the surgery, Plaintiff told a nurse that his pain level was acceptable, though the pain fluctuated. (Tr. at 354, 386, 406, 472.) Dr. Cleary conducted the surgery, reporting that it went off without complication and Plaintiff "tolerated the procedure well." (Tr. at 405.) They discovered a large area of "mild induration and edema" on the left buttock. (Tr. at 404.) The edematous perianal skin was "consistent with perianal Crohn's disease, " Dr. Cleary reported; however, he found no active abscess, he could not discover any internal openings, and no potential openings exuded purulent material. ( Id. ) Nor could the doctor find any areas of fluctuance. ( Id. ) Possible proctitis caused oozing during the procedure. (Tr. at 405.) Plaintiff stayed overnight and was examined the next day. (Tr. at 520.) In the morning, the notes indicate he had a steady gait, the incision sight contained only "[s]cant" drainage, ( Id. ), and he again said the pain was acceptable. (Tr. at 472.) Dr. Cleary sent him to Dr. Caleb Schroeder for a post-operation outpatient evaluation. (Tr. at 365.) Dr. Schroeder noted that the "[p]osteroperative course was uncomplicated" and he was tolerating the diet and medications; Plaintiff would need to follow up with Dr. Cleary. (Tr. at 365.)

Dr. Cleary described the procedure and results in a letter to Dr. Jasbeck. (Tr. at 592.) The large phlegmon blotching Plaintiff's left buttock was drained and Dr. Cleary found no purulent abscess. ( Id. ) He hoped antibiotics would resolve the issue, though he believed that the Crohn's disease was the cause and the symptoms would recur. ( Id. )

On February 19, 2011, he went to the emergency room, reporting "unspecified" chest and abdominal pain present over the previous four days. (Tr. at 305, 356-57, 362, 677.) The pain began when he started taking Metformin in 2009, the last time he remembered having pancreatitis. (Tr. at 300, 677.) He reported that he was allergic to the drug. ( Id. ) He included Crohn's disease, back pain, and diabetes in his medical history. (Tr. at 303, 677.) However, his back was not tender. (Tr. at 301, 678.) Cigarette use persisted, while he continued to abstain from alcohol. (Tr. at 301, 677.) His breathing was normal, (Tr. at 300-01, 305, 356-57, 678), as was an electrocardiogram ("ECG") measuring his sinus rhythm, which they also compared to a 2009 ECG and found "no significant change...." (Tr. at 341.) Chest x-rays also came back normal. (Tr. at 337, 676.) His pain score, presumably measured on a ten-point visual analog ("VA") scale, began at eight and later ebbed to three, which was an acceptable level according to Plaintiff. (Tr. at 304, 333, 344, 351-52.) The diagnosis was acute pancreatitis-Dr. Carmen Foster, reviewing test results, said it was likely "mild"-and prescribed oxycodone. (Tr. at 302, 310, 314, 321, 327, 362, 679.) Notes of a call Plaintiff's wife made to Dr. Jasbeck's office on February 23, 2011, stated that Plaintiff was "feeling much better." (Tr. at 645.)

Plaintiff returned for a follow up appointment with Dr. Cleary on March 7, 2011. (Tr. at 293.) On an unsigned form, with questions addressed to Plaintiff and thus presumably answered by him, his current and past medical history included only high blood pressure, diabetes, arthritis, and chronic back pain; unchecked were elevated blood lipids (hyperlipidemia), alcoholism, and inflammatory bowel disease (Crohn's disease). Mark H. Beers & Robert Berkow, eds., The Merck Manual of Diagnosis and Therapy 200-11 (17th ed. 1999) (defining and discussing hyperlipidemia and Crohn's disease). Again, Plaintiff related he smoked but did not drink; and he also listed his exercise regimen of biking or walking two to three times per week. (Tr. at 294.) He did not mark any box to indicate he had symptoms. (Tr. at 295.)

In the session notes, Dr. Cleary wrote that he found during the surgery "a large edematous, mildly indurated area... and a smaller area on the right [that was] very edamatous[;] however[, ] there was no discrete abscess. There was no purulent material.... There was no internal opening." (Tr. at 287.) He excised three "packed, " subcutaneous wounds that seemed to "fill[] up when he has bowel movements, " as Plaintiff described. ( Id. ) Dr. Cleary thought Crohn's disease explained the skin issues. (Tr. at 288.) The doctor was "concerned that [because of] his skin changes... ultimately he may require proctectomy and will have huge perineal wound issues" and, depending on the examination, might need to consult a plastic surgeon. ( Id. ) Asked if he wished to have Dr. Cleary examine, under anesthesia, the possibility that the wounds refilled, Plaintiff agreed, and also wished to explore weight loss options. ( Id. )

Dr. Garber examined Plaintiff on March 8, 2011. (Tr. at 722.) Plaintiff reported that his back pain, morning stiffness, and fatigue had all improved recently. ( Id. ) The surgery in February disrupted his physical therapy sessions; he attended five and felt they helped. ( Id. ) Lyrica had also helped his pain. ( Id. ) Dr. Garber continued the Lyrica and noted that the Humira would also ease his "inflammatory back disease." ( Id. ) Finally, Plaintiff requested a letter supporting his disability application. ( Id. )

The anaesthetized examination with Dr. Cleary took place on March 17. (Tr. at 282.) Before the procedure, a nurse examined Plaintiff, finding no abnormalities. (Tr. at 219-24.) Plaintiff reported no changes since the prior examination, (Tr. at 217), and rated his pain at level zero. (Tr. at 223.) Dr. Cleary observed that the wounds from the previous examination were healing. (Tr. at 243.) Edema spread on his left buttock and anorectal area, "but no fluctuance, no abscess, no evidence of anorectal sepsis." ( Id. ) The principal diagnosis was again anal and rectal abscesses and Crohn's disease. (Tr. at 243, 245, 282.) See 2 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder E-126 (2013) (defining enteritis). Other findings included "likely edematous skin changes related to [C]rohn's disease, some ulceration, [and] friable rectal mucosa." (Tr. at 245.) Plaintiff was up walking after the surgery ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.