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United States District Court, D. UtahMar 26, 2004
Case No. 2:02-CV-01084 PGC (D. Utah Mar. 26, 2004)

Case No. 2:02-CV-01084 PGC

March 26, 2004


Plaintiff Tim Nelson filed this action seeking judicial review pursuant to 42 U.S.C. § 405(g) of a final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. The court has reviewed the materials carefully and determines that oral argument would not be helpful. For the reasons explained below, the court finds no valid basis for reversing the decision of the Commissioner and, accordingly, denies Mr. Nelson's appeal.

See 41 U.S.C. § 401-433, 1381-1383f.


Mr. Nelson was 39 years old as of the date of the Administrative Law Judge's ("ALJ") decision. He had an eleventh grade education and worked as a form setter, carpenter's helper, construction worker, painter, machinist, and building maintenance person.

On October 30, 1997, Mr. Nelson underwent an MRI scan of the cervical spine which showed a herniated disc at C5-6 with impingement on the left C6 nerve root.

On February 9, 1998, Marie V. Reichman, M.D., performed a C5-6 anterior cervical discectomy with interbody fusion on Mr. Nelson.

On April 2, 1998, Roger Smith, M.D., prescribed medication for Mr. Nelson for stress and anxiety.

On May 1, 1998, Mr. Nelson requested a prescription for medication for neck pain from Dr. Smith. Mr. Nelson related he was unable to see Dr. Reichman "because of lack of funds and [the] allegation that he was arrested for intoxication." Dr. Smith found that Mr. Nelson had tenderness throughout the left side of his neck, decreased sensation in the left arm, and a normal neurological examination. He also noted that x-rays showed a metallic screw at the site of Mr. Nelson's cervical fusion was in an abnormal position.

On May 9, 1998, Mr. Nelson complained to Dr. Smith that he had suffered an apparent seizure while loading wood. Dr. Smith found Mr. Nelson had no motor or sensory deficits, was fully oriented, and answered questions appropriately.

On November 10, 2000, Mr. Nelson complained to a physician of an inability to move his left arm and pain on his left side for approximately three to four weeks. He also related he had no medical insurance and no money for medication. Examination revealed normal reflexes and sensation, tenderness and no range of motion of the lower left arm and fingers, and reduced range of motion of the neck. The physician noted an assessment of possible radiculopathy secondary to previous neck surgery, provided samples of Ultram and Skelaxin, and recommended an orthopedic consultation and an MRI study.

On November 11, 2000, Mr. Nelson presented at Dixie Medical Center with complaints of a headache of five days duration and pain in the left arm. Examination revealed tenderness of the neck and left arm. Mr. Nelson obtained significant relief with medication and was discharged to home. A diagnosis of migraine headache was noted.

On December 11, 2000, Larry Cain, M.D., examined Mr. Nelson in relation to complaints of pain, muscle spasm and numbness in his left arm and leg, and an almost complete inability to use his left arm. He stated that his treating neurosurgeon told him that a screw had become loosed in the hardware in his neck, but refused to see him because he no longer had Medicaid coverage. Dr. Cain contacted Mr. Nelson's neurosurgeon, Dr. Reichman, who denied he had refused to see Mr. Nelson. Dr. Reichman related that a screw in Mr. Nelson's hardware had become loosened, but he did not think it related to his present symptoms. Dr. Cain's examination of Mr. Nelson revealed no atrophy, normal reflexes, and decreased sensation in his left arm and leg in "no particular distribution." He observed Mr. Nelson had moderate difficulty standing on his left leg and was barely able to lift with his left arm. He rendered an assessment of "left arm weakness, muscle spasms and pain without objective evidence or neurological findings such as changes in the reflexes, muscle atrophy, etc." Dr. Cain recommended neurological evaluation.

On December 11, 2000, Dr. Cain completed a Workplace Functional Ability Medical Report Form regarding Mr. Nelson at the request of the State of Utah Department of Workforce Services. Dr. Cain indicated that Mr. Nelson was limited to sedentary work involving occasional lifting of up to ten pounds due to left-sided weakness.

On December 21, 2000, Mr Nelson presented "a myriad of complaints of neck pain with pain radiating to the left arm with numbness of the left arm and pain in his left leg" to Dr. Reichman. Dr. Reichman noted that Mr. Nelson had been involved in an altercation with a police officer following his discectomy/fusion surgery, and that one of the screws at C6 had "backed out about 3 millimeters." He concluded that the hardware in Mr. Nelson's neck should be revised or removed.

In an updated Workplace Functional Ability Medical Report Form, Dr. Cain stated that Mr. Nelson was "fully disabled at this time."

X-rays of Mr. Nelson's spine, taken on December 21, 2000, showed post-surgical and degenerative changes at C5-6 with slight foraminal narrowing on the right and mild foraminal narrowing on the left.

On March 12, 2001, Edward B. Holmes, M.D., assessed Mr. Nelson's physical residual functional capacity at the request of the Commissioner, based on a review of Mr. Nelson's records. Dr. Holmes concluded that Mr. Nelson could perform "medium work" which required no more than occasional reaching with the upper extremities and occasional climbing. "Medium work" involves lifting no more than SO pounds at a time with frequent lifting or carrying objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately six hours in an eight hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. Dr. Holmes explained that Mr. Nelson's alleged lack of use of the upper extremity was not substantiated as his examinations showed no atrophy, normal reflexes, and non-dermatonal sensory loss.

20 C.F.R. § 404.1567(c), 416.967(c) (2003).

Social Security Ruling 83-10.

On April 21, 2001, G. Arun Kumar, M.D., a neurologist, examined Mr. Nelson on a referral from Dr. Cain. Mr. Nelson stated that over the last few weeks the strength in his left arm had returned and his numbness had decreased, but that his neck pain with radiation to the left hemicranium had persisted. He also stated he was able to walk without assistance.

Dr. Kumar reviewed Dr. Reichman's records, noting that Dr. Reichman had scheduled surgery to reposition the loosened screw at the site of Mr. Nelson's fusion, but that Mr. Nelson had canceled the surgery. Upon examination, Dr. Kumar found Mr. Nelson had normal sensation and reflexes, no atrophy, normal grip strength in the left hand, "5/5" strength in the right arm and right leg, "5/5" strength in the left shoulder abduction and left elbow flexion, "4-/5" strength in left elbow extension, and normal strength in the left leg "with encouragement." He also found Mr. Nelson had normal speech and memory, normal cranial nerves, and a slight limp on the left. Dr. Kumar scheduled a neurosurgical consultation for Mr. Nelson with Dr. Randy Jensen at the University of Utah and recommended a CT or MRI scan of the cervical spine.

On June 13, 2001, Mr. Nelson complained to Dr. Cain of continuing pain in his left arm and left leg, and severe discomfort with most activities. He complained that while he had regained some use of his left arm, he had very little control of his left hand. Dr. Cain noted that Mr. Nelson continued to walk with a limp and complained of "pains everywhere." He noted that Mr. Nelson "may not be able to work" until he underwent an MRI of the neck and hardware removal from the neck.

On June 13, 2001, in a Workplace Functional Ability Medical Report Form submitted to the State of Utah Department of Workforce Services, Dr. Cain reported that Mr. Nelson "may be unable to find suitable employment" until he underwent removal of hardware and an MRI scan of his neck.

On July 27, 2001, Dr. Cain stated: "I believe that [Mr. Nelson] is capable of working, but definitely in a reduced capacity. The weakness in his left leg and left arm is going to make it difficult for him to do any heavy labor and so the job that he would qualify for would be menial at best."

On September 5, 2001, Mr. Nelson complained to R. Wade Oakden, M.D., of pain in his neck, back, and hips, exacerbated by "any type of work." Dr. Oakden found Mr. Nelson had no edema of the extremities, no neurological deficits, limited range of motion of the hips, and extreme tenderness to palpitation "over the hips, [and] anywhere along the spine." He noted Mr. Nelson indicated he "pretty much has pain located in most of his joints." Dr. Oakden rendered an assessment of chronic pain, "etiology of which is uncertain."

X-rays of Mr. Nelson's spine, taken on September 10, 2001, showed prior surgery at the C5-6 level with no acute bone, joint or disc abnormalities.

On September 10, 2001, Mr. Nelson underwent MRI studies of the cervical, thoracic, and lumbar spine. The study of his cervical spine showed minimal retrolisthesis and anterior gapping at the C6-7 disk space with mild canal narrowing that did not appear to significantly impinge on neural structures. The studies of his thoracic and lumbar spine showed no evidence of significant neural impingement.

On October 24, 2001, Mr. Nelson presented "multiple, multiple complaints . . . including possible stroke and seizure activity" to Dr. Oakden. He related that on one occasion he had to pull off the road and then, without losing consciousness, fell out of his car. He stated that he had fallen down because of muscle spasms in his back. He complained of excruciating headaches and severe left hip pain. Upon examination, Dr. Oakden found trace edema of the extremities, no neurological deficits, and limited range of motion in all joints due to pain. He concluded that Mr. Nelson's chronic pain was possibly associated with somatization disorder.

X-rays of Mr. Nelson's left hip, taken on October 24, 2001, were reported as normal.

On November 30, 2001, Dr. Oakden completed a residual function capacity questionnaire concerning Mr. Nelson. Dr. Oakden reported that x-rays of Mr. Nelson's hip were normal, and that MRI studies of his thoracic and lumbar spine showed mild degenerative changes. He indicated that according to Mr. Nelson's history, he was unable to walk even one block without severe pain. He did not express an opinion as to how long Mr. Nelson could stand or sit at one time, but reported that in a competitive work situation, Mr. Nelson would need to lie down for five to six hours and could stand for less than two hours. He also stated that Mr. Nelson was unable to stoop, crouch or lift due to pain.

Administrative Hearing

At the hearing of January 28, 2002, Mr. Nelson testified that he stopped working on October 24, 2000, because of severe muscle spasms, numbness in his legs, and loss of use of his arm, and that he had not sought employment since that date. He testified that his primary medical problems were in his neck, hips, knees, legs, feet and head. He testified that the loose screw in his neck was hanging in his esophagus, and that it pulled his throat sideways when he yawned. He testified that reaching overhead with his right arm was severely painful, and that if he raised both hands above his head he would lose his balance and fall He stated that after his neck surgery he was paralyzed from the waist down for one or two weeks and had to drag himself around. He testified that four to five times a week he suffered severe headaches that lasted all day. He stated that he could walk for half a block, stand for 20 to 25 minutes, and sit for 40 to 45 minutes. He testified that he typically spent 10 hours per day sitting in a recliner watching television. He stated that he prepared his own meals, went out for drives with his friends, and sometimes did laundry, vacuuming, and sweeping.

John Hurst, M.S., a vocational expert, testified that Mr. Nelson's past jobs were classified as heavy and medium work. The ALJ asked Mr. Hurst to consider an individual of Mr. Nelson's age, education, and work experience who could occasionally lift no more than 10 pounds, and who needed to alternate between sitting and standing after 40-45 minutes of sitting and 20-25 minutes of sitting. Mr. Hurst testified that such a person could work as a food and beverage order clerk, surveillance system monitor, and semi-conductor bonder.

Administrative History

Mr. Nelson previously filed applications for DIB and SSI which were denied at the initial level of administrative review on April 5, 1999. Mr. Nelson did not seek review of that decision. Mr. Nelson again applied for DIB and SSI on October 30, 2000, alleging an inability to work since October 24, 2000, as a result of pain and numbness on the left side of his body (and "spreading to the right side") and headaches. After his claims were denied initially and upon reconsideration, Mr. Nelson requested a hearing before an ALJ, which was held on January 28, 2002.

On May 31, 2002, the ALJ issued a decision denying Mr. Nelson's claims, finding he could perform a limited range of "sedentary work." "Sedentary work" involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." As the Appeals Council denied Mr. Nelson's subsequent request for review, the ALJ's decision of May 31, 2002, was the Commissioner's "final decision" under 42 U.S.C. § 405(g).

See 20 C.F.R. § 404.1567(a), 416.967(a) (2003).

Mr. Nelson now brings this action, seeking reversal of the Commissioner's decision.

Standard of Review

The court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The court may neither "reweigh the evidence nor substitute [its] discretion for that of the [ALJ]." Where the evidence as a whole can support either the agency's decision or an award of benefits, the agency's decision must be affirmed. However, the Commissioner's decision is subject to reversal if the incorrect legal standards were applied.

Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1028 (10th Cir. 1994); Hamilton v. Secretary of Health Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992).

Hamilton, 961 F.2d at 1498.

White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001).

See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

See Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988).


Mr. Nelson argues that the ALJ erred by (1) failing to seek additional medical records; (2) failing to consider the combined effects of Mr. Nelson's impairments; and (3) that the ALJ improperly determined that work existed for him in the national economy. Each of these claims is without merit.

Medical Records

Mr. Nelson alleges that the ALJ had a duty to seek out medical records from Mr. Nelson's physicians in support of a specultaive diagnosis of Somatization Disorder or call Mr. Nelson's physicians to request additional evidence. This misstates the law. The ALJ only need contact Mr. Nelson's treating physicians when the evidence presented was inadequate to determine whether Mr. Nelson was disabled. The ALJ relied upon the opinions of Dr. Cain, Dr. Kumar, and Dr. Holmes, and Mr. Nelson's own statements in determining his limitations. All of this evidence supported the conclusion that he was not disabled, and the ALJ needed no additional evidence from Mr. Nelson's physician to come to this conclusion. Listing Impairment

See 20 C.F.R. § 404.1512(e), 416.912(e)(2003).

Mr. Nelson contends the ALJ erred in determining that his impairments did not rise to the level of a Listing impairment. Whether a claimant's condition meets or equals the criteria of a Listed impairment is determined on the basis of medical evidence alone. Mr. Nelson bears the burden of showing his impairments meet or equal the requirements of a Listed impairment. Mr. Nelson has neglected in his brief to specify which Listing he suffers from or how the evidence indicates he meets that Listing. Also, nowhere in the medical evidence does any physician indicate that he satisfied the criteria of a Listing.

See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987).

The ALJ did rely on the opinions of the reviewing physicians in determining Mr. Nelson failed to meet the requirements of a Listed impairment. Dr. Holmes concluded that Mr. Nelson was capable of performing a limited range of medium work, something he could not do if he suffered from a Listing impairment. Even Dr. Cain, a treating physician, indicated that Mr. Nelson was capable of performing sedentary work. Neither Mr. Nelson's treating or examining phsyicians have identified any definite neurological basis for Mr. Nelson's symptoms. Even if Mr. Nelson's symptoms of weakness and numbness were of disabling severity, the evidence does not demonstrate that they lasted for the requisite twelve-month period of time. For all these reasons the ALJ did not err in concluding that Mr Nelson's impairments did not rise to the level of a Listing impairment.

See Ostronski v. Chater, 94 F.3d 413, 417 (8th Cir. 1996).

Work in the National Economy

Mr. Nelson argues that the ALJ improperly determined he was capable of performing work in the national economy. The Commissioner bears the burden on this issue. Mr. Nelson argues that the vocational expert's testimony did not support a finding that work existed in the national economy that he could perform. Mr Nelson further argues that the ALJ's determination of his residual functional capacity was not based on his own statements regarding his limitations. With respect to the latter claim, the ALJ was not required to accept Mr. Nelson's limitations. Mr. Nelson testified he suffered from frequent headaches, but since October 2000 had sought medical treatment for headaches only once. He testified he could not use his upper left extremities, but Dr. Holmes reported that no medical evidence supported this claim. He testified he was paralyzed from the waist down after his neck surgery, yet none of the records of his treating physicians contained a reference to paralysis. He testified he had disabling pain, but also testified he prepared his own meals, did some vacuuming, sweeping, and the laundry. Credibility determinations are for the ALJ. The ALJ could reasonably conclude that Mr. Nelson was not credible.

Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998); (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)).

The ALJ also determined that Mr. Nelson had the residual functional capacity to perform sedentary work. This conclusion is well-supported by the objective medical evidence. In December 2000, Dr. Cain, a treating physician concluded Mr. Nelson could perform sedentary work. Dr. Holmes, a State agency physician, found that he could perform a limited range of medium work. Dr. Kumar found that Mr. Nelson had normal sensation and reflexes.

The vocational expert testified that an individual with Mr. Nelson's profile and residual functional capacity could perform work as a food and beverage order clerk, surveillance system monitor, and semi-conductor bonder and that a significant number of those jobs existed in the national economy. Because the ALJ's hypothetical question included all of Mr. Nelson's limitations supported by the objective evidence, the ALJ properly concluded work existed for Mr. Nelson.


The court DENIES Mr. Nelson's Petition for Review, affirms the Commissioner's decision, and dismisses this case. The Clerk of the Court is directed to CLOSE THIS CASE.


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