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Lapointe v. Commissioner of Social Security

United States District Court, W.D. Michigan, Northern Division

July 2, 2019

TOBY TERRY LAPOINTE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          HON. ROBERT J. JONKER U.S. DISTRICT JUDGE

         Introduction

         Plaintiff Toby Terry LaPointe was injured in the 1990s while conducting a training exercise as a U.S. Marine. LaPointe fell while rappelling from a helicopter. LaPointe states that he uses his wheelchair to limit walking and his complex back brace to limit movement and pain. LaPointe describes his pain as constant, sharp, and dull. (ECF No. 6-2, PageID.40.)

         LaPointe was determined to be disabled by the Veterans Administration. (Id. at PageID.62.) After leaving the U.S. Marine Corps, LaPointe attended college for three years before accepting employment as an officer with the U.S. Customs and Border Protection. (Id. at PageID.66-67.) LaPointe retired due to his disability on September 20, 2014. (Id. at PageID.64.)

         LaPointe filed an application for disability insurance benefits alleging that he became disabled on September 7, 2014. The Social Security Administration rejected his claim and LaPointe requested a hearing. The Administrative Law Judge (ALJ) found that LaPointe could perform jobs that existed in significant numbers in the national economy given LaPointe's residual functional capacity (“RFC”), and therefore concluded that LaPointe was not disabled under the Social Security Act. The Appeals Council denied LaPointe's request for review.

         On appeal, LaPointe argues that the ALJ (1) failed to consider Listing 11.08(B) regarding spinal cord disorders, and (2) failed to afford the proper weight to Dr. Kevin Lawson's opinion, in violation of the treating physician rule. Upon review of the record, I respectfully recommend that the Court affirm the decision of the ALJ and dismiss this case.

         Standard of Review

         Review of an ALJ's decision is limited to two issues: (1) “whether the ALJ applied the correct legal standards, ” and (2) “whether the findings of the ALJ are supported by substantial evidence.” Winslow v. Comm'r of Soc. Sec., 566 Fed.Appx. 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and the Commissioner's findings are conclusive provided they are supported by substantial evidence. 42 U.S.C. § 405(g).

         Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec'y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole, and take into account whatever evidence in the record fairly detracts from its weight. Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984) (citations omitted). The substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993).

         Procedural Posture

         LaPointe applied for Social Security disability insurance benefits on September 7, 2014, the day he alleges he became disabled. (ECF No. 6-5, PageID.182-83.) LaPointe's application was initially denied, (ECF No. 6-4, PageID.127-30), and he subsequently requested an administrative hearing before an ALJ. (Id. at PageID.133-34). The ALJ held a hearing on February 27, 2017, at which time LaPointe was represented by counsel. (ECF No. 6-2, PageID.54-111.)

         On October 3, 2017, the ALJ affirmed the Social Security Administration's initial denial of benefits. (Id. at PageID.35-45.) The ALJ's decision became the agency's final decision on April 25, 2018, when the Appeals Council denied LaPointe's request for review. (Id. at PageID.21-25.) LaPointe then filed this appeal, seeking judicial review of the agency's final decision denying his request for disability benefits.

         Background

         LaPointe was born on June 10, 1970. (ECF No. 6-3, PageID.113.) LaPointe has a high school education and attended college for three years. (ECF No. 6-6, PageID.201.) LaPointe was employed as a U.S. Customs Officer until he retired due to his disability. (Id. at PageID.254.)

         During the 1990s, Lapointe was a U.S. Marine. He was injured in a rappelling accident that occurred during a training exercise. (ECF No. 6-2, PageID.73.) LaPointe broke two vertebrae and was medically discharged from the U.S. Marine Corps. (Id. at PageID.68.)

         In 2008, LaPointe had kyphoplasty surgery to remove a blood clot in his spine. (Id. at PageID.73-74.) An MRI on August 13, 2011, showed normal vertebral body height and alignment, and stable middle multilevel thoracic degenerative disease, with normal disc herniation. (ECF No. 6-6, PageID.261.) Post kyphoplasty surgery, he appeared stable with an ill-defined altered signal in the right aspect of the spinal canal at the T7 level consistent with a small amount of extruded cement. (Id.) The MRI showed degenerative loss of disc signal at L5-S1 and small broad-based central disc herniation mildly effacing ventral epidural fat consistent with a prior study. (Id. at PageID.263.) At L4-5, the MRI revealed mild central canal stenosis and bilateral neural foraminal stenosis with small focal central disc herniation and a stable mildly effacing ventral thecal sac. (Id.)

         LaPointe had T5-T11 spinal fusion surgery on September 27, 2012. (ECF No. 6-7, PageID.271.) On November 12, 2012, LaPointe was prescribed an external bone growth stimulator. (Id. at PageID.281.)

         Dr. Kevin Lawson examined LaPointe on September 9, 2013, due to spine pain, neck stiffness, and soreness. (ECF No. 6-8, PageID.514-516.) LaPointe was still working at the time, but Dr. Lawson noted he would probably retire due to his medical condition. (Id.) LaPointe was taking hydromorphine and hydrocodone but was still experiencing frequent headaches. (Id.) LaPointe was able to walk with a normal gait. (Id. at PageID.515.)

         On October 29, 2013, Dr. Lawson noted that LaPointe had not returned to his normal job duties post-surgery, but was performing light duty desk work. (Id. at PageID.517.) LaPointe was taking Dilaudid and Norco for pain. (Id.) LaPointe presented with mild lumbar degenerative disc disease with a stable thoracic fixation. (Id. at PageID.517-518.) Dr. Lawson noted that LaPointe had a normal gait on October 29, and December 9, 2013. (Id. at PageID.518, 521.) On December 9, 2013, LaPointe received a corticosteroid injection in his right shoulder. (Id. at PageID.521-523.)

         On January 27, 2014, Dr. Lawson noted that LaPointe was well coordinated with a normal gait and was walking normally during his office visit. (Id. at PageID.524.) On March 27, and May 29, 2014, Nurse Practitioner Carol B. Richwine noted that LaPointe presented with a normal gait but reportedly arose slowly from a sitting position. (Id. at PageID.527, 529.)

         LaPointe's examination was stable on July 14, 2014, but Dr. Lawson noted a broken screw in the thoracic hardware. (Id. at PageID.531.) On July 15, 2014, LaPointe stated that he “could hardly stand up” because of the intense pain and he was awaiting retirement paperwork from the federal government. (Id. at PageID.533.) Nurse Practitioner Richwine noted that LaPointe was prescribed Flexeril and Prednisone. (Id. at PageID.535.)

         Dr. Lawson examined LaPointe on September 22, 2014, and noted that the dorsal column stimulator trial helped with thoracic pain but not with all of his discomfort. (ECF No. 6-6, PageID.239.) Dr. Lawson reported that he observed LaPointe walk a modest distance with a normal gait. (ECF No. 6-8, PageID.539.) On October 15, 2014, LaPointe was examined by Nurse Practitioner Terry Malloy for left shoulder pain. (ECF No. 6-9, PageID.985-987.)

         Nurse Practitioner Richwine noted that, on January 27, 2015, LaPointe had a normal gait and was observed rising slowly from a sitting position to standing. (ECF No. 6-8, PageID.689.) LaPointe underwent surgery on February 10, 2015, to remove thoracic hardware and for placement of a neurostimulator device. (Id. at PageID.701, 711-714.) LaPointe presented with pain over the incision area on February 25, 2015. (ECF No. 6-9, PageID.753.) Dr. Lawson instructed LaPointe to use a walker for two to three more weeks. (Id.) At his six-week post-operative examination on March 24, 2015, LaPointe reported fatigue and afternoon nausea. (Id. at PageID.763.) LaPointe reported that his right chest and shoulder pain was ...


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