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Alston v. Colvin

United States District Court, E.D. Virginia, Newport News Division

February 14, 2014

HENRY ALSTON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DOUGLAS E. MILLER, Magistrate Judge.

Plaintiff Henry Alston ("Alston") seeks judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for a period of disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act. Specifically, Alston claims the ALJ failed to amend the alleged onset date of disability as he requested, improperly weighed the medical opinion of a treating physician, and improperly assessed his credibility. This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons stated below, this report recommends that the final decision of the Commissioner be affirmed.


Alston filed applications for SSI and DIB, alleging disability beginning June 26, 2007.[1] (R. 167-76). The Commissioner denied his application initially (R. 84-85), and upon reconsideration. (R. 86-107). Alston requested an administrative hearing, which was conducted in Newport News on October 18, 2011. (R. 33-61).

An Administrative Law Judge ("ALJ") concluded that Alston was not disabled within the meaning of the Social Security Act, and denied his claim for benefits. (R. 19-28). The Appeals Council denied review of the ALJ's decision (R. 1-3), thereby making the ALJ's decision the final decision of the Commissioner. Alston then filed this action seeking judicial review of the Commissioner's final decision under 42 U.S.C. § 405(g). This case is now before the Court to resolve the parties' cross-motions for summary judgment.


Born December 30, 1962, Alston is a 5'11" 233-pound male with a high school education. (R. 41, 167, 177). Prior to his alleged onset of disability, Alston worked as a delivery driver for an electronics and appliances company for 21 years. (R. 42-43, 57). He last worked in June 2007 following an injury sustained while moving a television stand upstairs. (R. 42, 43). Apparently, despite his allegations of continued pain, Alston did not seek additional treatment for his symptoms until 2010. (R. 44-45).

Alston's history of work-related pain, however, dates back to December 2004. At that time, he completed a questionnaire for Dr. Thomas C. Markham, M.D., reporting pain and weakness in both legs after carrying a television upstairs while at work. (R. 225). He indicated the pain did not affect his sleeping patterns or typical daily activities, but noted it did affect his ability to complete his job. (R. 226). He also reported an ability to walk just 20 minutes and sit just 15 minutes at a time before the pain required a change in posture. (R. 227). He admitted to smoking and ranked the pain in his legs and back as 8 out of 10, with 10 being the "worst pain I can stand." (R. 228).

Dr. Markham also conducted a physical examination. (R. 235). He noted that, on average, Alston smokes 12 packs of cigarettes per week. Alston was overweight and could move around the room easily and walk repetitively on his heels and toes, though he did complain of back and leg pain with these motions. Id . Gentle palpation anywhere along Alston's spine produced "significant complaints of back pain out of proportion to the pressure applied." Id . Absent any access to Alston's previous medical information, Dr. Markham observed he had "very little to offer, " though he did expect "that [Alston] would respond very well to aggressive physical therapy and quite possibly a work hardening program in conjunction with anti inflammatories." (R. 235-36). Further, Dr. Markham recognized that Alston's job involved heavy lifting and opined that "he [was] not physically capable of doing that" at that time. (R. 236).

At a follow-up appointment a week later on January 7, 2005, Dr. Markham observed no changes in Alston's symptoms. Newly acquired notes from Patient First indicated "mechanical-type low back pain symptoms." (R. 234). At this time, Dr. Markham opted to place Alston in physical therapy for an aggressive exercise program on a daily basis for the ensuing two weeks. He prohibited Alston from bending and lifting anything greater than 25 pounds. Dr. Markham remained concerned "by the complaints and falsity of findings." (R. 234).

Physical therapy treatment throughout the next few months proved helpful, with Alston being cleared for regular duty at work effective March 2005. (R. 229-33). On January 28, 2005, Dr. Markham noted that Alston was "doing dramatically better." (R. 233). By February 18, 2005, Alston himself reported an ability to return to regular duty at work by February 25, 2005. (R. 232). Alston went back to physical therapy following the February 18 appointment, however, and on March 25, 2005, Dr. Markham noted Alston "moves very well, " and agreed to let him return to work the following week. (R. 231). At an April 15, 2005 appointment, Dr. Markham observed that Alston was back to regular duty at work, despite some aching in his back. (R. 230). At a final appointment on June 3, 2005, Dr. Markham indicated that Alston was "doing much better." He was taking no medication, moved quite well, and had no tenderness in his back. He was allowed to continue working regular duty. (R. 229).

Alston presented two years later to a Patient First facility in Newport News, complaining of injuring his lower back while at work. (R. 242). He denied any midline tenderness, bowel or bladder dysfunction, paresthesias, or changes in strength or sensation. Id . He appeared well-developed and well-nourished and had good lateral movement and extension. Id . His straight-leg raise was negative and he could flex his back 30 degrees before his movement was limited by pain. Id . Additionally, he had "a lot of paraspinous muscle spasm from L3 to S1 with pain to palpation." Id . He ambulated slowly and appeared "a little hunched over." Id . Alston was ultimately diagnosed with a lumbar sprain and was given pain medication. Id.

At a follow-up on July 6, 2007, Alston reported decreased back pain with his medications. (R. 243). He also explained, however, that after doing some yard work to test the condition of his back, the pain and spasms returned. A physical exam revealed little change, though there were slightly less muscle spasms occurring in his right lower back. His medications were refilled and he was told to follow up with orthopaedics. Id . Alston, however, came back to Patient First on July 20, 2007 complaining that it had taken him almost 2 weeks to set an appointment with an orthopaedic doctor. He indicated he was running out of his medications again and needed a refill. As it was verified that Alston did have an appointment scheduled with Dr. Markham, he was given refills of his medications until that date. (R. 244). Alston returned for a third follow-up on August 22, 2007 seeking more refills. (R. 245). He was given a refill of Motrin, and was instructed that so long as he was under the care of Dr. Markham, follow-up appointments and medication refills should be obtained through that office.

A July 27, 2007 letter from Dr. Markham indicated Alston had remained out of work since June 26, 2007, when he injured his back while lifting a table at work. (R. 246). Dr. Markham recalled treating him for similar complaints several years prior, noting that "with physical therapy we were able to get him back to work." (R. 246). Alston was in "excellent health, " having lost 17 pounds since his last visit with Dr. Markham. He complained, however, of significant pain with palpation anywhere on his lower spine and with any motion, though he was able to walk into a room normally. When asked to walk on his heels or toes, he did so "with a very bizarre gait." Id . He had normal strength otherwise, and pain films of his back were unremarkable. Dr. Markham considered Alston to be "very poorly conditioned, " with "at most a mild musculoskeletal strain." Id . He placed Alston on light duty at work with no lifting of more than 20 pounds, and instituted daily physical therapy and exercise. Again, as was the case during his previous treatment, Dr. Markham was "concerned that his complaints seem to be out of proportion to physical findings." (R. 247).

Alston returned to Dr. Markham's office on August 10, 2007. He had not returned to work since his previous visit as no light duty was apparently available. (R. 256). He had not started physical therapy, either, as he could not afford driving to and from Hampton for the appointments. Considering the fact that it was a "significant financial burden" for Alston to drive to Hampton for physical therapy or for visits with Dr. Markham, Dr. Markham determined it would be in Alston's best interest to switch to a physician closer to his home. He continued in his belief that Alston "has a mild musculoskeletal strain that should respond quite well to an aggressive conditioning program." Id.

Notwithstanding this, Alston returned to Dr. Markham's office again on September 26, 2007 at the request of his newly approved physical therapist. (R. 258). Alston explained he was doing much better with the therapy. Indeed, Dr. Markham noted that Alston's back range of motion had markedly improved, as he was now able to forward flex and touch his toes. Id.

Following his 2007 visit to Dr. Markham, there is a gap in Alston's medical record before the ALJ. Several years later, on April 15, 2010, Alston visited Dr. Concepcion S. Aspili, M.D. for an "evaluation for low back pain since 2007 when he injured his back carrying a TV stand at work." (R. 275). Alston reported no new injury, but described "on and off pain that radiated to his right lower leg, with numbness in his foot. Id . On exam, Alston could bend his back 90 degrees without difficulty, had 5/5 motor strength in his upper and lower extremities, and was alert and oriented. Dr. Aspili continued Alston's medications and scheduled a follow-up appointment after two weeks. In May 2010, Alston claimed his back pain was improving with medication, but he reported right knee swelling without any sort of trauma. (R. 278). An MRI of Alston's spine revealed moderate spinal stenosis with disc herniation at L4-L5, and moderate soft tissue stenosis at L5-S1 due to epidural fat deposition. (R. 288, 293). X-Rays of his right knee showed mild osteoarthritis with small joint effusion. (R. 289).

On August 31, 2010, Dr. David Lorenzo issued a medical opinion evaluating Alston's physical ability to do work-related activities. (R. 305-06).[2] Dr. Lorenzo found that due to Alston's chronic lower back and right knee pain, hypertension, and obesity, he was capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently. (R. 305). Further, he was able to stand and walk approximately 2 hours and sit for about 6 hours in an 8-hour day. Id . Moreover, Alston would need to take unscheduled breaks during his work shift every 2 hours. Id . He could occasionally twist, stoop, crouch, climb stairs and ladders, and the only physical function affected by his impairments was his ability to push or pull. (R. 306).Lastly, he needed to avoid all exposure to extreme cold or heat, wetness, humidity, and hazards (machinery, heights, etc.).Id.

In February 2011, Alston presented to Dr. Lorenzo with back pain. (R. 312). He appeared alert and oriented with spine tenderness. He was positive for straight leg raising on the right and his right knee was slightly tender with no swelling. Id . Dr. Lorenzo continued the dosage of Neurontin for Alston's back pain. Id . Follow-up records through September 1, 2011 indicate no change in Alston's physical condition and a continued use of medications, with an increase in the dosage of Neurontin prescribed in April 2011. (R. 310, 316). Dr. Lorenzo drafted another opinion regarding Alston's ability to do physical work-related activities on September 23, 2011. (322-23). In it, Dr. Lorenzo limited Alston's ability to lift and carry on a frequent basis to less than 10 pounds, and his ability to stand and walk during an 8-hr day to less than 2 hours. (R. 322). Additionally, Dr. Lorenzo decreased Alston's environmental restrictions to "avoid even moderate exposure" from "avoid all exposure." (R. 323). Everything else was identical to his 2010 opinion.

In October 2011, Alston complained of bilateral knee pain going into his foot, right worse than left. (R. 325). Dr. Kerry L. Loveland, an attending physician, observed that Alston was alert and oriented, and in no acute distress. (R. 326). Dr. Loveland also noted that Alston smoked approximately 15 cigarettes a day and drinks a 6-pack of alcohol each week. An examination of his knees revealed no knee effusions. He also had no tenderness to palpation. While strength testing in the right leg indicated a weakness in the L3, 4, and 5 nerve distributions, he had normal sensation bilaterally and examination of the left knee was "completely normal." Id . Dr. Loveland reviewed images of both knees and observed a possible osteochondral defect in the lateral femoral condyle of the left knee but "otherwise they were unremarkable." Id . Ultimately, Dr. Loveland believed the pain Alston reported in his feet was not related to his knees, but more likely associated with his back issues. She recommended epidural injections by his primary care physician, but had nothing else to offer. Id.

In addition to records from treating physicians, the ALJ considered two medical source statements from agency physicians. On June 2, 2010, Leopold Moreno, M.D., reviewed the medical evidence of record and assessed Alston's residual functional capacity. (R. 73-83). Dr. Moreno evaluated the submitted medical evidence from June 2007 through May 2010, observing a general decrease in Alston's impairments. For example, in June 2007, Dr. Moreno noted that Alston had pain with any motion and a bizarre gait when walking on his heels and toes. At the time, his complaints seemed out of proportion to the physical findings. Indeed, by September 2007, Alston's back range of motion was "dramatically better." While Alston continued to complain of back pain in 2010, Dr. Moreno noted he could flex his back 90 degrees without difficult, his back pain was improving with medication, and his knees were not tender. (R. 76).

Dr. Moreno considered Alston's statements regarding his symptoms to be partially credible as the evidence to-date indicated that while Alston had treated for back pain, he had virtually no other physical limitations. (R. 77). He also reported an ability to mow the lawn and vacuum the house twice a week. Given all of this evidence, Dr. Moreno considered Alston capable of performing the exertional requirements of medium work, but was limited in his ability to climb ropes, ladders, or scaffolds. (R. 79-80).

On December 6, 2010, Tony Constant, M.D., another state agency physician, reviewed Alston's updated medical records through October 2, 2010, including an MRI and Dr. Markham's medical opinion from July 27, 2010. (R. 87-89). Among other things, Dr. Constant noted that Alston had moderate spinal stenosis that caused back pain that radiated down his right leg, but he was able to ambulate without an assistive device, would have limitations bending and kneeling, and would have pain lifting anything over 20 pounds. (R. 90). He, too, considered Alston's statements regarding his symptoms partially credible for the same reasons explained by Dr. Moreno - namely because the medical evidence and Alston's own daily activities revealed no other physical limitation beyond back pain. In fact, he had full range of motion of his spine, a normal gait, and no difficulty in using his hands. Accordingly, Dr. Constant ...

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