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Agan v. Astrue

United States District Court, N.D. Iowa, Central Division

February 7, 2013

Gary A. AGAN, Plaintiff,
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mary C. Hamilton, Hamilton Law Firm, Storm Lake, IA, Thomas A. Krause, Des Moines, IA, for Plaintiff.

Teresa K. Baumann, United States Attorney's Office, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.

INTRODUCTION 734

A.

Procedural Background 734

B.

Factual Background 735

1.

Summary of medical evidence 735

2.

Hearing testimony 742

3.

Summary of the ALJ's decision 744

II.

ANALYSIS 745

A.

Standard Of Review 745

B.

Agan's Objections 749

1.

The ALJ's credibility determination 749

a.

Lack of functional restrictions 750

b.

Objective medical evidence and daily activities 750

c.

Subjective nature of back pain 752

d.

Loss of health insurance 752

e.

Work history 753

f.

Age category 754

2.

The ALJ's development of the record 754

a.

Work-related limitations 755

b.

Agan's diabetic peripheral neuropathy 756

c.

Evidence of mental impairments 756

III.

CONCLUSION 758

Page 734

I. INTRODUCTION

A. Procedural Background

This case is before me on a Report And Recommendation (docket no. 10) from United States Magistrate Judge Leonard Strand, regarding plaintiff Gary A. Agan's claims for disability insurance benefits (" DIB" ) and supplemental security income (" SSI" ), pursuant to Titles II and XVI of the Social Security Act.

I quote from Judge Strand's Report And Recommendation to introduce the procedural background of this case:

Agan was born in 1960, has a high school education, and previously worked as a welder, assembler, mechanic and sheet metal installer. AR 32-34, 161, 215-24, 262. On April 22, 2009, Agan applied for DIB and SSI, alleging disability beginning on July 22, 2008 due to a back injury, diabetes, a foot injury and gout. AR 161, 191, 195. The Commissioner denied Agan's applications initially and again on reconsideration. AR 58-61. Agan requested a hearing before an Administrative Law Judge (" ALJ" ). AR 74. On April 25, 2011, ALJ Jeffrey Marvel held a hearing at which Agan and a vocational expert (" VE" ) testified. AR 28-57. On May 25, 2011, the ALJ issued a decision finding Agan not disabled since the alleged onset date of disability of July 22, 2008. AR 10-27. Agan sought review of this decision by the Appeals Council, which denied review on September 7, 2011. AR 1-6. The ALJ's decision thus became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.

Report And Recommendation at 1-2 (docket no. 10).

On November 10, 2011, Agan filed a complaint with this court, seeking review of the ALJ's decision. The case was referred to Judge Strand, pursuant to 28 U.S.C. § 636(b)(1)(B), for the filing of a report and recommended disposition of the case. On March 14, 2012, Agan filed his brief in support of benefits (docket no. 7). First, Agan argued that the ALJ failed to properly evaluate his allegations under Polaski v. Heckler, contending that the objective evidence provides more than sufficient support to Agan's testimony. Second, Agan contended that the ALJ failed to fully and fairly develop the record. Specifically, Agan argued that the ALJ failed to obtain work-related limitations from an examining source. Also, Agan contended that the ALJ failed to obtain Agan's mental health records or to order a consultative evaluation. Third, Agan argued that the ALJ's errors are not harmless.

On May 14, 2012, the Commissioner responded with his brief in resistance (docket no. 8). The Commissioner contends that the ALJ was not required to develop the record any further because substantial evidence supports his finding that Agan's mental impairments and diabetes were not severe. The Commissioner argues that the ALJ articulated valid reasons for discounting Agan's credibility. The Commissioner contends that the ALJ's RFC determination was supported by substantial evidence on the record as a whole. Also, the Commissioner maintains that the ALJ's hypothetical question was proper and the vocational expert's testimony provided substantial evidence that Agan was not disabled.

Judge Strand issued a Report And Recommendation on October 15, 2012 (docket no. 10), 2012 WL 5285923. Judge Strand determined that the ALJ's decision was supported by substantial evidence in the record as a whole, and, therefore, recommended

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that the ALJ's decision denying benefits be affirmed. Specifically, Judge Strand found that the ALJ's credibility determination based on Agan's daily activities, the lack of objective medical evidence, the limited treatment or complaints after his onset date, and the inconsistencies in the record is supported by substantial evidence. Responding to Agan's argument that the evidence could be viewed to support a finding of disability, Judge Strand concluded that the argument reflects the wrong standard of review and the ALJ's decision must be given deference. Judge Strand determined that the ALJ adequately developed the record regarding the evidence supporting the RFC assessment, medical evaluations indicating Agan's diabetes mellitus and diabetic peripheral neuropathy, and Agan's mental impairments. On October 29, 2012, Agan filed a timely objection (docket no. 11) to Judge Strand's Report And Recommendation.

B. Factual Background

In his Report And Recommendation, Judge Strand made the following findings of fact:

1. Summary of medical evidence
A. Dr. Mark Palit
Beginning in February 2005, Agan went to see Dr. Palit for low back and right leg pain that had lasted for three months. AR 496. Agan explained that the pain extended all the way down to his foot and was aggravated by increased activity. Id. He described the pain as sharp and shooting and chiropractic care provided minimal relief. Id. Dr. Palit ordered x-rays of Agan's spine which showed decreased disc height, mildly, at L5-S1. Id. Upon physical examination, the doctor noted that Agan walked slowly but steadily, favoring the right leg. Id. He found that Agan's range of motion of the lumbar spine was reduced on flexion and extension and the straight leg raise was positive on the right. Id. Palpation of the lower lumbar spine produced mild discomfort. Id. Agan was diagnosed with lumbar radiculopathy and prescribed a pain reliever. Id. An MRI scan was also scheduled.
At a follow-up two days later, Dr. Palit found that the MRI revealed lateral recess stenosis at L4-L5. AR 494. He recommended an epidural steroid injection and referred Agan to the Pain Center. Id. Agan was released to light duty work. Id.
In March 2005, Agan reported that he was doing about " 30-40% better" after his injection. AR 494. After a second injection, he claimed that he experienced no relief and he continued to have ongoing pain described as sharp and shooting, which was aggravated by increased activity. AR 493. Dr. Palit recommended L4-5 decompression surgery, which was performed on April 22, 2005. AR 492-93.
After the lumbar decompression, Agan reported on May 5 that his right leg pain had been resolved, but now he experienced left leg pain down to his foot with a burning sensation. AR 492. Dr. Palit instructed Agan to continue walking, progressing from a walker to a cane. Id. He prescribed Amitriptyline and Ibuprofen. Id.
Agan returned for a follow-up in June 2005. Because he still complained of left leg pain, the doctor ordered another MRI with a contrast agent. AR 491. This MRI revealed mild residual stenosis at L4-5 with a very mild disc bulge. Id. Dr. Palit referred Agan to another doctor for a left L4 selective nerve root block. Id. After that injection, Agan reported minimal pain. AR 489. His work duties were advanced to 5.5 hours per

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day. Id. In July 2005, Agan reported he was doing well and returned to regular work duty. AR 489.
B. Dr. Mohamed K. Youssef
On January 3, 2007, Agan began seeing Dr. Mohamed Youssef, at Trinity Regional Medical Center in Fort Dodge, Iowa for back pain that radiated down both legs. AR 353. He was given an epidural steroid injection at L5-S1. AR 352. The treatment notes indicate Agan had a previous epidural steroid injection in October 2006 and experienced good pain relief. Id. Agan returned for another injection on April 20, 2007. AR 349-51. During this visit the nurse prepared a report asking Agan to identify how much his chronic pain limited his ability to perform certain activities. AR 351. Agan listed the following activities as limited a lot: climbing stairs, kneeling or bending, getting out of the house, and pursuing hobbies or other recreational activities. He also claimed to get 50 percent less sleep than usual due to his pain. Id. AR 489.
On April 29, 2007, Agan reported to the emergency room at Pocahontas Community Hospital with symptoms of increased thirst, increased urination during the night, and dizziness. AR 427-29. The nurse noted that he was a newly diagnosed diabetic and his glucose was elevated. Id. Agan was admitted to acute care. He was given diabetic education and started on insulin. Id. He returned to half-days at work on May 8 and full-time on May 22. AR 451.
Agan received additional lumbar epidural steroid injections from Dr. Youssef. On July 25, 2007, he still complained of continued low back pain radiating down both legs. AR 347. He reported that climbing stairs, getting in or out of bed or a chair, and pursuing hobbies or other recreational activities were limited a lot by his pain and he was getting 50 percent less sleep than usual. AR 348. He was given epidural steroid injections on that date and again on October 5, 2007. AR 342-45. Dr. Youssef noted Agan had experienced excellent pain relief from this procedure in the past. AR 342.
On November 28, 2007, Agan agreed to a spinal cord stimulator trial. AR 337-38. At this visit, he told the nurse that activities such as working with his hands, performing tasks at work, and visiting with family and friends were also now limited a lot by his pain in addition to the activities previously identified. AR 341. After the spinal cord stimulation lead was inserted, Agan reported a numbing, tingling sensation covering the area of pain and was very satisfied with the current stimulation. AR 337.
At a follow-up on December 3, 2007, Agan reported excellent pain relief from the spinal cord stimulator trial, with about an 80 percent decrease in pain. AR 330. Agan explained that he was more active throughout the trial and able to sleep through the night without waking up. Id. Dr. Youssefs impression was that Agan's pain had been secondary to lumbar degenerative disc disease, a herniated lumbar disc, and lumbar radiculopathy. Id.
C. Dr. Cassim Igram
Dr. Youssef recommended that Agan see Dr. Igram at the Iowa Ortho Center regarding his chronic lumbar radiculopathy. AR 264-65. Agan reported that nothing had adequately addressed his pain except the recent spinal cord stimulator trial and he was interested in pursuing a permanent

Page 737

implant. AR 264. He stated that daily activity made his pain worse. Id. Upon physical examination, Dr. Igram noted that flexion and extension were limited and Agan had some stiffness with these maneuvers. Id. Agan also had breakaway weakness to motor testing in both lower extremities with sensory deficit in a non-dermatomal pattern in the right lower extremity. Id.
On December 24, 2007, Dr. Igram performed a thoracic laminectomy for placement of a permanent spinal stimulator. AR 266. Agan was instructed to have the stimulator programmed by doctors in Fort Dodge and he was released to return to work on January 4, 2008. AR 269.
On January 11, 2008, Agan returned to Trinity Regional Medical Center in Fort Dodge reporting pain in his low back and right leg. AR 327. He claimed he was not getting adequate coverage in his lower back from the spinal cord stimulator. Id. Agan was referred back to Dr. Youssef in the Pain Clinic to reprogram the stimulator. Id. After attempting several different programs that did not provide coverage to the painful area in Agan's back, Dr. Youssef concluded that Agan needed to see Dr. Igram again to discuss repositioning the stimulator. AR 323-24.
D. Dr. Russell Buchanan
On March 27, 2008, Dr. Buchanan began evaluating Agan at the Iowa Spine and Brian Institute. AR 291-92. Agan reported constant pain in his low back that was improved with lying down. He claimed the pain was worse when sitting for a prolonged period. Id. Dr. Buchanan noted that Agan had some difficulty walking on heels and toes due to bilateral lower extremity pain. He also had difficulty squatting to regain standing and flexing forward to touch his knees to regain standing. Id. Agan was working as a welder at this time. Id. Dr. Buchanan ordered a CT scan. Id.
Dr. Buchanan reviewed the CT scan results with Agan in mid-April. He found that the scan demonstrated facet degeneration at L4-L5 that was " quite severe" and that could be the possible generator of pain. AR 287. He ordered discography to determine whether Agan's dorsal column stimulator leads needed to be re-positioned. Id.
Dr. Robert Federhofer performed the discography and stated it was his impression that Agan had " definite diskogenic pain at the L5-S1 level and probable diskogenic pain at the 4-5 lumbar level." AR 312.
Dr. Buchanan saw Agan again on June 26, 2008. AR 283-84. He noted that Agan had difficulty achieving a standing posture and when he did, he had a flex posture at the waist. He noted that Agan could not straighten up without significant low back pain. Although Agan was able to walk on his heels and toes, he had difficulty squatting to regain standing and flexing forward to touch his knees. Id. Based on the findings of the discography study and the morphology of disks, Dr. Buchanan suggested surgery. Id.
On July 22, 2008, Dr. Buchanan performed a lumbar interbody fusion at L4-L5 and L5-S1 with interbody cage placement and anterior plating. AR 306-09. The spinal cord stimulator was also removed. AR 307. During the surgery Dr. Buchanan found severe disc degeneration at L5-S1 with significant disc collapse and loss of integrity of the structure of the disc as well as the cartilaginous endplate.

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AR 306. He noted the L4-5 disc appeared hardier and somewhat healthier with the exception of a central area of the disc that demonstrated severe deterioration. AR 306.
Agan reported to Trimark Pocahontas Family Practice on August 6, 2008, to have suture removal from his back surgery. He also saw a physician for gout in his left foot and arthritis in his right ankle. At that time, he also indicated that he stopped taking Avandia for his diabetes because of the cost. AR 443.
On September 8, 2008, Agan reported for a follow-up exam at the Iowa Spine and Brain Institute. He stated he was doing very well in terms of pain control and was not experiencing any of the leg pain he had before the surgery. AR 279. He indicated that he still wore a bone stimulator on a daily basis and the physician assistant encouraged him to continue this. AR 280. Agan inquired about when he could return to work. Id. The physician assistant recommended physical therapy three times per week for two weeks followed by work hardening for two weeks at which time they could evaluate whether he was ready to return to work. Id.
A month later, Agan stated that physical therapy had helped and that he was doing better apart from some occasional stiffness. AR 275. He stated he did not have any pain in his legs. Id. His gait was coordinated and smooth and he was able to walk on his heels and toes. He could squat and regain a standing position without difficulty and could touch his knees while flexing forward. Id. Agan was released to work 4.5-hour days with no lifting over 30 pounds and limited bending and twisting. Id.
Agan reported to the emergency room at Pocahontas Community Hospital on October 19, 2008, stating he had tripped and fell, exacerbating his chronic low back pain. AR 400. Agan stated the pain was so severe he had difficulty getting back to his chair. Id. Agan was out of pain medication at this time. After a physical examination, the physician noted Agan's motor skills and reflexes of the lower extremities were normal. The physician also noticed some mild sensory deficits consistent with diabetic peripheral neuropathy. Id. Agan was given a pain reliever and a note off work the next day. Id.
Agan was back to working full-time in November 2008. At a follow-up exam, he stated he was still experiencing constant back pain of 7 out of 10, but no pain in his legs. AR 271. He said he was doing exercises at home, walking, and was continuing to wear the bone stimulator. Id. The physician assistant suggested another injection in an effort to relieve some of the pain near Agan's right SI joint. AR 272.
Dr. Youssef administered the bilateral sacroiliac injection on November 14, 2008. AR 315. The nurse's notes indicate that Agan had been laid off for missing work. AR 317. Agan described his pain level as 6 out of 10 and said his pain kept him from doing activities such as climbing stairs, performing housework, and pursuing hobbies or other recreational activities. AR 318. Other activities that were limited due to his pain included walking, kneeling or bending, bathing or dressing himself, getting in or out of bed or a chair, preparing meals, visiting with family or friends, and getting out of the house. AR 318.
E. United Community Health Center

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On February 10, 2009, Agan sought treatment at United Community Health Center (" UCHC" ) in Storm Lake, Iowa for back pain and other health issues. AR 390. On March 12, 2009, Agan went to UCHC and complained of back pain. He was prescribed Tramadol.[1] AR 389. He was seen again on April 21, 2009, and prescribed Diazepam.[2] AR 388. On June 25, Agan returned complaining of chronic back pain and diarrhea. AR 386. He had run out of Tramadol a week earlier and was taking an extra dose of Diazepam each day. Id. Both prescriptions were re-filled at this appointment. Id. The nurse practitioner noted that he ambulated slowly and had difficulty getting up and down from the examination table. Id.
On July 14, Agan reported that he continued to have diarrhea and abdominal pain. AR 385. The nurse practitioner noted that Agan was under stress as his unemployment was about to run out. She also noted he was depressed and that he had applied for disability benefits. Id. She prescribed an anti-depressant. Agan missed a scheduled appointment at the beginning of August, but on August 28 he reported to the clinic with chest discomfort. AR 383. He explained that he had been doing yard work the week before and developed pain in his left lower chest wall. Id. The nurse practitioner assessed it as muscle strain and prescribed an anti-inflammatory. Id. On September 9, Agan saw the nurse practitioner for refills of his pain medications. She examined Agan finding tenderness around his spine and refilled his medications. She also noted Agan's depression was stable. AR 381.
On September 28, Agan visited Trimark Pocahontas Family Practice and reported a sudden onset of low back pain radiating down his right leg after lifting a chair. AR 433-34. The doctor assessed Agan with lumbar strain and prescribed a muscle relaxant. Days later, Agan reported to UCHC with the same complaint from the same incident. AR 380. He was prescribed a narcotic pain reliever. Id.
On October 6, Agan was taken to the emergency room after attempting suicide. He had taken 10 to 15 Tramadol pills and left a note for his wife. AR 374, 379, 402-03. The doctor noted Agan said it was due to " some bad news he received," but he then " blamed it on his wife and arguments about cooking and various other items." AR 402. He was discharged the next morning with the recommendation to seek counseling. AR 402. His provider at UCHC suggested he immediately begin counseling at Plains Area Mental Health Center. [3] AR 379.
Agan returned to UCHC on November 24 requesting refills of his back pain medication, which were ordered. AR 461. He had a follow-up

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appointment in December with no new complaints. AR 460. On January 13, 2010, Agan requested refills of his back pain medication again, and they were ordered. AR 459. On February 18, he had a follow-up appointment and stated he felt good. AR 457.
In March, he sought a consultation at UCHC for alcohol abuse. AR 470. Agan told the nurse practitioner he drank alcohol every day for the entire day, estimating he drank at least a 12-pack of beer per day. Id. He claimed that he did not have any alcohol that day, although the nurse noted that he spoke loudly and slurred his speech. Id. Agan stated that he had tried to get into an inpatient detoxification center at Fort Dodge, but had to wait two weeks. Id.
On April 6, Agan returned to UCHC for sinus congestion, but also mentioned that he was experiencing back pain. He was prescribed Darvocet, a narcotic pain reliever for his back. AR 469.
On April 21, 2010, Agan reported to UCHC stating that he had tried inpatient alcohol treatment in Fort Dodge, but it had not gone well. AR 468. He also stated he had been seeing a counselor at Compass Pointe in Spencer, Iowa. Agan told the nurse practitioner he had lost the medications for his back pain and requested more Darvocet. Id. The nurse practitioner offered to call the treatment center, but Agan said he had already contacted the facility. Id. They agreed that Agan should not take any more narcotics and the nurse practitioner prescribed an anti-inflammatory instead. Id. Agan was educated on the consequences of drug seeking. Id.
On May 18, Agan reported to UCHC for a follow-up on his diabetes and a lipid panel. AR 467. The nurse practitioner noted that she educated Agan on his diet and suggested exercise of 30 minutes maximum, five days per week.
On June 8, Agan requested detoxification from alcohol and Valium. AR 465. At the time of the visit, the doctor thought Agan had overdosed on benzodiazepines. Id. The police were contacted to take Agan to the hospital after he insisted on driving by himself. Id.
In August 2010, Agan was referred to the Iowa Heart Center for chest discomfort which had lasted for two weeks. AR 472. Outside of reflux disease, there were no abnormal findings. AR 475.
F. Orthopaedic & Sports Medicine Specialists, LLC
In December 2010, Agan began seeing Kristina Johnson, PA-C, for a right hand injury. AR 488. He injured his hand after hitting a wall with a closed fist. Id. He had visited the ER immediately after the injury, where he was x-rayed and his hand placed in a splint. Id. He told Ms. Johnson that it was causing him pain and he was experiencing numbness and tingling. Id. Upon physical examination, she found bruising, swelling, and tenderness. Id. She also noted that Agan was able to flex and extend his wrist very minimally due to the swelling and pain. Id. She instructed him to start utilizing his hand and doing hand pumps to bring down the swelling. Id.
Upon follow-up for his hand, no changes were noted but Agan still complained of pain. AR 487. He was prescribed hydrocodone. Id. The physician assistant noted that he had significant decreased range of motion with his fingers and wrist and started

Page 741

him on occupational therapy to improve this. AR 486. Agan stated that he was still experiencing pain. Id.
Agan met with a surgeon on January 18, 2011 for evaluation of his right hand. AR 485. Upon physical examination, the doctor noted there was some bruising and he had tenderness in the mid shaft of the middle finger. Id. Flexing and extending certain areas of the hand were also limited. Id. The doctor ordered tests and prescribed a pain reliever with the instruction that this was the last time his office would be giving him any pain medication. Id.
In February, the doctor noted that Agan's hand was unchanged since his last visit. AR 502. Agan still complained of discomfort, but the doctor noted, " I am at a loss to find an appropriate diagnosis for his pain and discomfort." Id. Agan was referred to another hand surgeon for further evaluation and given a final prescription of a pain reliever. Id.
G. State Agency Medical Consultants
On June 12, 2009, Laura Griffith, D.O., performed a physical RFC assessment. AR 35-62. After reviewing Agan's medical records, she concluded he could occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds. AR 356. She also thought Agan could sit, stand and/or walk six hours out of an eight-hour workday. Id. She estimated that Agan could occasionally climb a ramp or stairs and occasionally perform tasks that required balancing, stooping, kneeling, crouching, or crawling. AR 357. She indicated that he could never be expected to climb a ladder, rope, or scaffolds. Id.
In explaining her findings, Dr. Griffith noted that Agan's treating sources indicated he had normal muscle tone and strength. AR 360. While Agan reported that he had constant back pain, she found his credibility somewhat eroded by his failure to seek further care since November 2008. Id. She noted that two months after his fusion surgery, he reported that he was doing very well in terms of pain control and the pain he had in his legs was normal. AR 362. She also noted that a physical exam at that time showed Agan had full range of motion in his extremities with normal muscle strength and tone, with physical therapy and work hardening suggested. Id. In addition, in November 2008, a month after Agan had been released back to work part-time with a 30-pound lifting restriction, he reported that he had been working full-time but still experienced ongoing back pain. Id.
Dr. Griffith also commented on Agan's daily activities. She noted that he takes one-mile walks and lays on the couch. He has no difficulty with personal care, does laundry, and mows the yard. He reported that he could lift 20 pounds. Id.
This physical RFC assessment was submitted to Gary Cromer, M.D., on October 1, 2009 for reconsideration. AR 368. Additional allegations of worsening pain, depression, and chronic diarrhea were considered. Id. Dr. Cromer noted that new medical evidence included an abdominal ultrasound obtained for hepatomegaly and abdominal pain. Id. This test showed only mild hepatomegaly with probable fatty infiltration, and a small right renal cyst. Id. An updated report on Agan's activities of daily living and a pain questionnaire were requested, but were never returned. Id. Dr. Cromer concluded, " Evidence fails to

Page 742

document substantial worsening in physical condition warranting alteration in the initial assessment. No opinion evidence is noted. The initial assessment, supplemented by this update, remains appropriate and is therefore affirmed." Id.
2. Hearing testimony
A. Plaintiff's Testimony
At the administrative hearing, Agan testified he was 50 years old, graduated from high school and had vocational training in auto mechanics from Lincoln Technical Institute. AR 32. He stated he last worked part-time for Wal-Mart in 2009. He worked in the store's tire and lube center four or five hours a day and four or five days per week. AR 33. He held this job for a month, but quit because he could not handle the pain in his back. Id. Agan also testified that he previously worked as a welder for seven or eight years and as a sheet metal installer. AR 33-34. He testified that as a sheet metal installer he carried a tool belt weighing 25 to 30 pounds and would frequently lift objects weighing from 10 to 30 pounds. AR 34.
Agan testified that he was no longer working because of chronic low back pain. Id. He explained that the pain radiates mainly down his right leg, is constantly present, and increases with movement. AR 36. He estimated that the baseline level of pain is about a seven on a scale of ten. He was seeing a family practitioner for pain management and was treated through medication, but not physical therapy. AR 44. Agan testified that he had three surgeries on his back. AR 36. The first one was a laminectomy in 2005, after which he was able to return to work. Id. The second surgery was in 2007, when a neurostimulator was placed in his back. AR 36-37. Agan was also able to return to work after this surgery. AR 37. The third surgery was in 2008 when the stimulator was removed. AR 37. Agan returned to work after this surgery, but stated his employer sent him home after determining he was not performing his job. Id. Agan testified that when he tried to return about two weeks later, he was told not to come back. Id.
Agan also discussed his other medical problems and the medications he was taking for them. He was taking hydrocodone and Tramadol for his back pain but testified that neither helped much with his pain. AR 38-39. Agan also stated that he treated his diabetes with insulin and that his blood sugar had been high recently with some of the medication he was taking. AR 40. Doctors had told him blood sugar goes up with pain. Id. For gout, Agan said he took Allopurinol. Id. He informed the ALJ that the problem with his hand was now being attributed to gout in his fingers. Id.
Agan's alcoholism and suicide attempts were also discussed. Agan testified that he had stopped drinking alcohol six months earlier and had completed a treatment program. AR 40-41. He admitted that he had overdosed on Valium in June 2010, which had been prescribed for anxiety. AR 41-42. Agan stated that he was still suffering from anxiety and had begun treatment at the Berryhill Center for Mental Health (" Berryhill" ) for both anxiety and depression five months earlier. AR 42. He stated that he was being treated with Paxil, an anti-depressant. Id. Agan estimated that he suffered from anxiety and depression since he lost his job in 2008, and although his medication helped, he still experienced symptoms. AR 43.

Page 743

During the hearing, Agan rotated between sitting down and standing up. AR 44. When the ALJ asked why he kept changing positions, Agan stated that because of the chronic pain in his back, he was only able to sit in a chair for about 15 to 20 minutes. Id. He could then stand or walk around for 15 to 20 minutes before he needed to sit down again. Id. Agan testified that he thought he could walk about one block without experiencing pain or discomfort. AR 44-45. He also thought he could stand in one place for about 15 minutes before experiencing pain or discomfort. AR 45. Agan's other limitations included grasping or gripping things due to the gout in his right hand. Id.
Agan's activities of daily living were also discussed at the hearing. AR 46. He stated that he tries to maintain the house he lives in with his wife and two daughters as best as he can by loading the dishwasher and doing laundry. Id. He stated he is able to take care of his personal needs and can drive, but only for short trips. AR 47. He testified that he goes to the grocery store about once a week with his wife but stays in the car most of the time. Id. Agan later clarified that he was only able to get out of the house and do activities on good days and that he experiences approximately 10 to 12 bad days per month. AR 49. He said he uses a walker to get out of bed or off the couch, but he is able to walk without it. AR 48.
B. VE's Testimony
Marian Jacobs also testified at the hearing. The ALJ asked her to consider four hypotheticals to determine what type of work Agan could perform and if these jobs were available in the regional and national economy. First, the ALJ asked her to consider whether a person could perform any of Agan's past work given the following qualifications and limitations: the same age, education, and past work experience as the claimant, who could occasionally lift 20 pounds and frequently lift 10 pounds, could stand and walk six hours out of an eight-hour day, could sit for six hours out of an eight-hour day, and could occasionally balance, stoop, crouch, kneel, crawl, and climb, but could not climb ladders, ropes, or scaffolding. AR 52. The VE testified that a person with these qualifications and limitations would not be able to perform any of Agan's past work. Id. However, she believed a person with the skills the claimant had acquired in his past work could perform the job of order filler in a wholesale company or a parts clerk in a retail store within the limitations of the first hypothetical. AR 52-53. Light unskilled jobs such as an assembler, bottle inspector, or router could also be performed and were available in substantial numbers in Iowa and the United States. AR 53.
For the second hypothetical, the ALJ asked if a person could perform any of Agan's past work if that person could stand and walk only two hours out of an eight-hour workday. The VE answered " no" and stated that no sedentary jobs were available which required the skills the claimant had acquired in his past work. AR 54. As for unskilled sedentary jobs, the VE indicated that dresser and sorter of envelopes and packages, assembler of buttons and notions, and final assembler of optical frames would be appropriate and existed in substantial numbers in the regional and national economy. AR 54-55.
For the third hypothetical, the ALJ asked the VE to consider the sedentary hypothetical with the addition

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that the person would need to alternate sitting and standing every 15 to 20 minutes. AR 55. The VE stated that such an individual could not perform work in a competitive economy.
Finally, the ALJ had the VE consider the sedentary hypothetical with the additions that the person would need to take more than two unscheduled breaks per day and work at a slow pace for up to one-third of the day. Id. The VE testified that such a person could not perform work in a competitive economy. Id. She clarified that her answer remained the same ...

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