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Savage v. Colvin

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

September 3, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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For Raymond C Savage, Plaintiff: Thomas A Krause, LEAD ATTORNEY, SCHOTT MAUSS & ASSOCIATES, DES MOINES, IA.

For Commissioner of Social Security, agent of Carolyn W Colvin, Defendant: Mary C Luxa, LEAD ATTORNEY, U S Attorney's Office, Des Moines, IA.

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Plaintiff, Raymond Charles Savage, filed a Complaint in this Court on March 20, 2014, seeking review of the Commissioner's decision to deny his claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § § 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).

Plaintiff filed applications for benefits December 9, 2010. Tr. at 129-30 & 136-42. Plaintiff, whose date of birth is November 29, 1964, (Tr. at 129) was nearly 48 years old at the time of the hearing on September 10, 2012, before Administrative Law Judge Tela Gatewood (ALJ). Tr. at 31-65. The ALJ issued a Notice Of Decision -- Unfavorable on February 12, 2013. Tr. at 8-26. The Appeals Council declined to review the ALJ's decision on January 31, 2014. Tr. at 1-3. Thereafter, Plaintiff commenced this action.

The ALJ found that Plaintiff was last insured for Title II benefits on December 31, 2011. At the first step of the sequential evaluation, the ALJ found that Plaintiff has not engaged in substantial gainful activity after December 9, 2010, the alleged disability onset date. At the second step, the ALJ found Plaintiff has the following severe impairments: migraine headaches, hypertension, obesity, chronic obstructive pulmonary (COPD), and a fatty liver. Tr. at 14. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. Tr. at 16. At the fourth step, that ALJ found:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can lift and/or carry and push and/or pull twenty pounds occasionally and ten pounds frequently. He can stand and/or walk with normal breaks for six hours in a workday. He can sit with normal breaks for six hours in a workday. The claimant could stoop, kneel, crouch, and climb ramps or stairs occasionally. The claimant cannot crawl or climb ladders, ropes or scaffolds. The claimant cannot work at unprotected heights or around hazards. The claimant would need to avoid concentrated exposure to dusts, fumes, smoke, chemicals, gases, or noxious odors.

Tr. at 18. The ALJ found that Plaintiff is unable to perform his past relevant work. Tr. at 23. At the fifth step, the ALJ found that Plaintiff is able to do a significant number of jobs, examples of which include marker, mail clerk, and photocopy machine operator. Tr. at 24-25. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which he applied. Tr. at 26.


Before the alleged onset of disability date, Plaintiff was treated at Broadlawns Medical Center for various illnesses and

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injuries, including migraine headaches which were described by a physician on August 14, 2009 (Tr. at 356), as refractory [1] and frequent. He was also treated for injuries sustained in a car accident, abdominal pain, and an umbilical hernia repair. The Court has reviewed all of those medical records but no purpose would be served by a detailed summary of them here.

On December 2, 2010, Plaintiff saw Randy N. Maigaard, M.D., at Broadlawns Medical Center for various complaints. Plaintiff said he continued to have migraine headaches which he treated with prescription medication. Plaintiff said he felt better on Lisinopril which was used to treat his high blood pressure. Plaintiff continued to have pain in his right shoulder. Plaintiff was advised to quit smoking. Plaintiff's prescriptions were refilled and he was advised to return to the clinic in three months. Tr. at 333-34.

On January 10, 2011, Plaintiff was seen in the neurology clinic at Broadlawns Medical Center for his migraine headaches. Plaintiff reported that the headaches were occurring 3 to 4 times per week, and once or twice per week the headaches were accompanied by nauseousness, vomiting, and photophobia. Plaintiff said the headaches could last from four hours to three days. Tr. at 381. After the neurological examination, Wendy A. Waldman, M.D., made several changes in Plaintiff's medication. Tr. at 382.

Plaintiff saw Dr. Waldman again on February 16, 2011. Plaintiff continued to struggle with headaches. Plaintiff said prednisone, which the doctor prescribed at the previous visit, helped a little. Plaintiff had used the medication topiramate as prescribed, but had not noticed any changes. Plaintiff also reported having joint pain. Dr. Waldman increased the dosage of Topamax and added gabapentin [2] to help both headaches and joint pain. Tr. at 407.

On March 9, 2011, Plaintiff saw Dr. Waldman while he was having a migraine the intensity of which he rated at 9 on a scale of 1-10. Plaintiff said the headache had been nonstop for the past four days. The doctor wrote: " Unfortunately, he was denied Disability." The doctor increased the dosage of gabapentin. The doctor also prescribed Namenda [3] which she said was

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" an off-label approach to headache." Tr. at 404.

On March 30, 2011, Dr. Waldman noted that Plaintiff was having a particularly bad day and that he was extremely uncomfortable and had been for three days. Plaintiff had been unable to sleep. The doctor adjusted the dosage of Plaintiff's medication and added Ambien which she said was to aid sleep. Tr. at 403.

Plaintiff saw Dr. Waldman on May 2, 2011. He reported " three to four stints of bad headaches" since the previous visit. Plaintiff was having a headache which he rated at a level 8. The doctor adjusted Plaintiff's medications and wrote that she would ask for an opinion from the University of Iowa. Tr. at 402.

On May 9, 2011, Plaintiff saw Dr. Waldman after undergoing an MRI (Tr. at 411) which was normal with no changes since the MRI on August 19, 2009. Plaintiff reported daily headaches at a level 8. The doctor wrote that Plaintiff " continues to appear to be debilitated by headache." The doctor noted that an appointment at the University of Iowa was pending. Tr. at 401.

On June 13, 2011, Plaintiff reported that since beginning Namenda, his memory had improved somewhat. Plaintiff attributed his memory trouble to anxiety or to the headaches. The doctor noted that headaches can cause " quite a bit of anxiety." Plaintiff also thought the Gabapentin had helped a little. Tr. at 436.

Plaintiff underwent an MRI on August 12, 2011 which was normal. Tr. at 460. Thereafter, Plaintiff was seen in the emergency room because the MRI had aggravated a migraine headache. Tr. at 454. Chance Coppola, D.O., offered Plaintiff an injection, but he refused, saying " nothing ever works." Tr. at 455. Plaintiff left the hospital without completing treatment. Tr. at 456.

On September 8, 2011, Plaintiff saw Dr. Waldman. Plaintiff rated his headache pain, which had been present for several days, at a level 9. The doctor noted that no medication had provided relief. The doctor suggested a trial of Botox which Plaintiff was willing to try. The doctor wrote that if Plaintiff did not have a response to Botox, he would need to go to the University of Iowa or to a pain specialist. Tr. at 452.

On November 28, 2011, Plaintiff reported to Dr. Waldman that the Botox " did not help and, in fact, it made things generally worse." The doctor wrote: " For the last several months, he has been walking with a cane. He has constant headache. Actually starting to wonder if there may be a functional aspect here." When the doctor recommended that Plaintiff see someone at the University of Iowa, he was willing. Dr. Waldman wrote that she would be sure that all the medical records were available to the doctors at the University. Tr. at 451.

On April 3, 2012, Plaintiff was seen at the Broadlawns Medical Center Foot and Ankle Clinic. Tr. at 447-50. Plaintiff said that he had an adverse reaction to the Botox and was " experiencing pain just about everywhere." Denise M. Mandi, DPM, wrote that she reviewed Dr. Waldman's notes which indicated that the Botox was ineffective, but did not mention anything about an adverse reaction. Plaintiff had been to the University of Iowa Neurology Department but was immediately referred back to Broadlawns. Plaintiff was walking with a cane and said that he was using the cane before the Botox injections. Tr. at 447. ...

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