Rease v. Barnhart (422 F. Supp. 2d 1334, 2006)

United States District Court for the Northern District of Georgia 2006-04-12

Citations

Full opinion text

MAGISTRATE JUDGE’S FINAL ORDER

FELDMAN, United States Magistrate Judge.

This is a pro se action to review the determination by the Commissioner of Social Security (“the Commissioner”) that Edward Lorenzo Rease is not entitled to a period of disability, or disability insurance benefits (“DIB”) under §§ 216(i) and 223(a), and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 416(i) and 423(a), and 1382.

PART ONE HISTORY OF THE CASE

On May 5, 1999 the claimant filed the instant application for a period of disability and DIB and/or SSI. In the combined application for DIB, the claimant alleged that he had been disabled since August 6, 1998 due to mental and physical health problems, including depression, panic attacks, and spinal injuries. Tr. 87-89, 101. The application was denied initially on July 8, 1999 and on reconsideration on October 20, 1999. Tr. 16, 17; 18-21; 24-27. On October 26, 2000, Administrative Law Judge (ALJ) Kelly Jennings held a de novo hearing and received testimony from the claimant and Mr. Earl Thompson, a vocational expert (VE). Tr. 673-705. On November 24, 2000, the ALJ rendered a decision adverse to the claimant. Tr. 34-39.

The claimant appealed that adverse decision to the Appeals Council (AC), which, on June 18, 2002, granted review and remanded the case to the ALJ with directions to (a) address the claimant’s 1999 earnings and whether he had performed work at the substantial gainful activity (SGA) level since his alleged date of disability onset; (b) properly evaluate the claimant’s credibility; (c) obtain updated medical information from any treating sources, and then provide the rationale for the weight he assigned to each medical opinion and assessment of record, (d) discuss the rationale for his conclusions regarding the claimant’s specific limitations and residual functional capacity, (e) consider obtaining one or more comprehensive mental status consultative examinations, and (e) conduct a new de novo hearing and obtain supplemental evidence from a VE to clarify the effect of the claimant’s limitations on his ability to do his past relevant work or other work existing in significant numbers in the regional or national economies. Tr. 84-86.

On April 23, 2003, the ALJ conducted a new de novo hearing at which he received new medical records from the claimant; and also received testimony from the claimant, Dr. Suzanne Cullins, M.D. (a medical expert), Dr. Neal Lewis, Ph.D. (a psychologist), and Dr. Laura Sewell, Ph.D., a VE. Tr. 706-47. On October 30, 2003, the ALJ rendered another adverse decision. Tr. 515-522. On August 25, 2004, the Appeals Council declined to review the ALJ’s decision (Tr. 6-9), thereby making the ALJ’s new adverse decision the final decision of the Commissioner. Thereafter, the claimant appealed the decision to the District Court. This case is now ripe for review under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

PART TWO

THE ISSUES

1. Whether the Commissioner’s decision that the claimant can perform substantial gainful activity (SGA) is supported by substantial evidence;

2. Whether the ALJ denied the claimant a full and fair hearing—

a. whether the ALJ properly evaluated the claimant’s subjective testimony;

b. whether the ALJ properly considered the claimant’s impairments in combination;

c. whether the ALJ was correct in not using the Medical Vocational Guidelines to determine whether the claimant was disabled.

d. whether the ALJ properly considered the opinion of the claimant’s treating physician, Dr. Steven Marrinson;

e. whether the ALJ properly fulfilled his duty to develop a full and fair record

f. whether the ALJ’s hypothetical questions to the VE included all undisputed evidence of the claimant’s impairments. And

3.Whether this Court should remand the case to the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g).

PART THREE FOR REVIEW

THE STANDARD

The claimant bears the initial burden of proving that he is disabled, which burden is met when he proves that he suffers from a terminal impairment or a severe impairment that is expected to last at least twelve months and renders him unable to pursue his customary employment. Thereafter, the burden shifts to the Commissioner to prove that the claimant can, nevertheless, perform other types of substantial gainful activity. Freeman v. Schweiker, 681 F.2d 727 (11th Cir.1982). In determining whether a claimant is disabled within the meaning of the Social Security Act, the Commissioner is required to consider:

(1) Objective medical facts or clinical findings;

(2) Diagnosis of examining physicians;

(3) Subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife or other members of his family, his neighbors and others who have observed him; and

(4) The claimant’s age, education and work history....

DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972); Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir.1983).

The Commissioner, in reaching his determination, must also follow a five step sequential evaluation process. 20 C.F.R. §§ 404.1520 (1986). First, the Commissioner must look at whether the claimant is working. A claimant presently engaged in substantial gainful activity (“SGA”) is declared not disabled and the inquiry ceases. 20 C.F.R. §§ 404.1520(b) (1986).

If the claimant is not engaged in substantial gainful activity, the Commissioner must determine whether he suffers from a severe mental or physical impairment. If the impairment is not severe, the claimant is declared not disabled. 20 C.F.R. § 404.1520(c). If his impairment is severe, it meets the durational requirements, and it equals or exceeds a “listed” impairment, the claimant is considered disabled. 20 C.F.R. § 404.1520(d)(1986).

If the claimant’s severe impairment does not equal or exceed a listed impairment, the Commissioner must then determine the claimant’s residual functional capacity (i.e., the degree to which the claimant can function, despite all of his physical or mental impairment(s)). In addition to considering all of the claimant’s impairments, the Commissioner must also evaluate the physical and mental demands of the claimant’s past relevant work, and whether the claimant can meet those demands, given his residual functional capacity. 20 C.F.R. § 404.1520(e)(1986); Perez v. Schweiker, 653 F.2d 997 (5th Cir.1981).

If the claimant cannot perform his past relevant work, then the Commissioner must decide whether the claimant’s impairments) prevent him from doing any other SGA. 20 C.F.R. § 404.1520(g). In the event the impairments) preclude other SGA, a finding of disability is mandated.

It must also be recognized that hearings before the Commissioner (nee the ALJ and the AC) are non-adversarial in nature, and oblige the adjudicator (AC and ALJ) to ensure that the hearing record is complete. Specifically, it is the adjudicator’s duty to investigate the facts and develop the arguments, both for and against granting benefits. Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80, 88 (2000); Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.1999); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997) Welch v. Bowen, 854 F.2d 436 (11th Cir.1988); Co-wart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981). Furthermore, the ALJ must comply with this obligation even if the claimant is represented by counsel. This Court’s review of the case is generally limited to a consideration of the evidence in the certified record. Wilson v. Apfel, 179 F.3d at 1279.

The duty of this Court is not to decide facts anew, re-weigh the evidence, or substitute its judgment for that of the agency, but rather to determine if the agency’s conclusion, as a whole, was supported by substantial evidence in the record, and whether the Commissioner applied the correct legal standards. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); Phillips v. Barnhart, 357 F.3d 1232, 1240, n. 8 (11th Cir.2004); Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir,1995)(citing 42 U.S.C. § 405(g)); Smith v. Bowen, 792 F.2d 1547, 1549 (11th Cir.1986).

Substantial evidence has been defined as “more than a scintilla, but less than a preponderance.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982). The evidence must be such that “a reasonable mind might accept it as adequate to support the [Commissioner’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990).

In considering the evidence in the record, this Court must consider the record as a whole. It may not affirm the Commissioner’s decision by referring only to those parts of the record which support the same conclusion. Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.1983). “The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, 467 (1951) (Frankfurter, J.). However, if the Commissioner’s decision is supported by substantial evidence, this Court must affirm, even if the evidence preponderates against the Commissioner’s decision. Dyer v. Barn-hart, supra; Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158 (11th Cir.2004); Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.2003).

PART FOUR EVALUATION OF THE EVIDENCE

A. THE OBJECTIVE MEDICAL EVIDENCE

The claimant has an extensive history of treatment for physical problems dating back to his military service in the late 1970’s and mental problems (i.e., depression and anxiety), documented for the first time of record in 1997. The claimant apparently received medical treatment from (1) military physicians (signatures illegible) while he was serving on active duty with the U.S. Army; and these records, from June 1976 through February 1980, are found at Tr. 375-423. The claimant has also received medical treatment from: (2) Dr. Ken Logan of the Logan Chiropractic Life Center, from September 6, 1989 to December 13, 1989 (Tr. 143-154); (3) Kennestone Hospital from May 13, 1999 to June 25, 1999 (Tr. 303-319), from October 27, 1990 to April 2, 1999 (Tr. 267-282), and from June 20, 2002 through February 1, 2003 (Tr. 443-456); (4) Dr. Mark I. Harris, M.D. from November 6, 1990 to June 17, 1991 (Tr. 160-173); (5) Shallowford Community Hospital on January 16-18 and June 20-21, 1991 (Tr. 155-159;174-184); (6) Dr. Bert A. Loftman, M.D., at Piedmont Hospital from August 27, 1991 to July 2, 1998 (Tr. 212-214), including surgery on September 5, 1991, and therapy from February 18 to March 4, 1992 (Tr. 185-211); (7) Kennesaw Family Physicians, from November 17, 1990 to October 22, 1998 (Tr. 242-266); (8) Dr. Beverly L. Boyd, Ph.D. at Georgia Neurology Associates, from July 2, 1997 to January 11, 1998 (Tr. 361-374); (9) Dr. Jeffrey Klopper, M.D. and Dr. George Rowe, M.D. at Atlanta Psychiatry and Neurology, from September 4, 1997 to May 21, 1999 (Tr. 287-300); (10) Dr. Stanley M. Fineman, M.D., from January 17, 1986 to July 8, 1998 (Tr. 215-233); (11) Dr. Mark Kassels, M.D., from April 10, 1998 to October 9, 1998 (Tr. 237-41); (12) Crawford Long Hospital on September 10, 1998 (Tr. 234-236); (13) Dr. Felicia Pierre, D.P.M. at the Smyrna Clinic from July 13-20, 1998 (Tr. 431 — 435); (14) Dr. Alan Maloon at Marietta Neurological Associates, from April 28, 1999 to May 13, 1999 (Tr. 283-286); (15) Dr. Barry N. Straus, M.D. at Pain Medicine Specialists, from August 11-20, 1999 (Tr. 329-331); (16) by Dr. Richard J. Stork, M.D., at Pain Consultants of Atlanta, LLC in March 2000, and then from May 24, 2002 to October 17, 2002 (Tr. 438-442); and (17) Piedmont Medical Center from May 24, 2002 through May 5, 2003 (Tr. 457-501, 436-437).

The claimant was also evaluated by two consulting psychologists: (18) Dr. Steven Marrinson, Ph.D. on October 19 and 24, 2000 (Tr. 348-360); and (19) Dr. David B. Rush, Ph.D., on September 23, 2002 (Tr. 424^130). The claimant’s medical records were reviewed by (23) Dr. Robert Willing-ham, Jr., M.D., a non examining state agency orthopedic consultant, on June 24, 1999 (Tr. 301-302), and September 10, 1999 (Tr. 332-347).

Treating Medical Providers

1. The Claimant’s Military Medical Records

The claimant’s military medical records from June 1976 through February, 1980. (Tr. 375-423) show that he suffered frostbite to his feet during field training in 1976; in May 1977, he complained of pain in his feet and cramping in his hands during cold weather; and in October 1977, military medical personnel (signature illegible) diagnosed the claimant with possible arthritis. Tr. 410-411, 414 — 416, 418.

In April 1978, Dr. James F. Morgan, M.D. limited the claimant’s duties to exclude walking more than one mile; running or double timing; and exposure to temperatures below 32 degrees Fahrenheit, due to his feet. Tr. 412 The claimant also had an orthopedic consultation on February 7, 1978; and the doctor diagnosed him as suffering from Pes Planus in both feet and gave him arch supports. Tr. 411.

On November 27, 1978, another military physician, Dr. James B. VanDelden, M.D., determined that the claimant was qualified for separation from the service (i.e., discharge) because of the cold injury (frostbite) he had sustained to his feet. Tr. 409. The doctors further restricted the claimant to no daily exposure to cold in excess of five minutes per hour; no exposure below 40 degrees Fahrenheit; and no continuous wearing of combat boots in excess of 15 minutes per hour. Tr. 388, 402. Although the claimant has reported that he was injured in a helicopter accident, his military medical records are devoid of any indication thereof.

2. Dr. Ken Logan/Logan Chiropractic Life Center

On September 6, 1989, Dr. Kenneth O. Logan, a chiropractor, evaluated the claimant in connection with his complaints of cervical pain. The claimant also complained that he felt like pins and needles were inserted into his left arm and shoulder; he had thoracic and lumbar pain; he felt like pins and needles were shooting down his legs; and he had sinus problems. Tr. 151-154. Dr. Logan provided the claimant with chiropractic treatment for the next two and a half months for, inter alia, an L-5 subluxation. He also took cervical and lumbar x-rays on November 29,1989. Tr. 143-154. The results of these x-ray are not in the claimant’s record.

3. Kennestone Hospital

On October 26, 1990, the claimant was involved in a motor vehicle accident; and he was taken to the Kennestone Hospital ER on October 27, 1990 complaining of neck pain. The ER physician examined the claimant, diagnosed him with a cervical strain, and gave him a soft collar, medication (Nalfon and Lorcet, and instructions to apply heat to his neck and avoid any lifting). Tr. 281-282.

The claimant was next seen at the Kennestone ER five years later, on May 15, 1995, with complaints of low back pain. In the intervening years, as described in more detail infra, the claimant had continued to suffer with neck pain radiating into his left shoulder and arm; and he had low back pain. In 1991, Dr. Bert A. Loftman performed a cervical fusion at C3-4 and C4-5. The claimant returned to work but continued to have constant pain, and received physical therapy in 1992 with minimal improvement. The record is devoid of further treatment for complaints of neck or back pain until May of 1995, when the claimant complained to his physician at Kennesaw Family Physicians that he was suffering with low back pain.

On May 15, 1995, Dr. Thomas C. Spilker, M.D. examined the claimant and noted that he had pronounced bilateral pain on straight leg raising; but the claimant’s deep tendon reflexes were normal. Dr. Thomas Hinz, M.D. performed an intravenous pyelogram to determine whether the claimant’s pain was musculoskeletal or due to a kidney stone. However, the test results were normal. Tr. 277-278.

Four years later, on April 2, 1999, the claimant again returned to the Kennesaw ER, complaining of low back, groin and neck pain. At that time Dr. Samuel Bone, M.D. took lumbar x-rays, but found no signs of lumbar fracture or subluxation. Tr. 271, 274. In the interim, as discussed in more detail infra, the claimant suffered from allergy problems; was diagnosed with glaucoma at the age of forty; was diagnosed with severe plantar fasciitis in both feet which improved with therapy and permanent arch supports; and allegedly was suffering harassment and discrimination at work; and several doctors treated him for depression and anxiety between July 1997 and May 1999. In fact, on August 15, 1997, Dr. Beverly Boyd, Ph.D. diagnosed the claimant as so depressed and anxious that he was unable to work; and he subsequently went on a disability leave of absence, and his employer terminated him on March 28,1999.

From May 28 to June 16, 1999, physical therapists at the Kennestone Hospital provided the claimant with therapy for heightened neck and upper back pain. Tr. 313. On June 16, 1999, a therapist (whose signature is illegible) discharged the claimant because, after five therapy sessions, he continued to complain of increased pain and had shown no improvement. Tr. 318. The claimant’s pain was still fairly severe; he could only lift very light weights; and his neck pain made it difficult for him to read and work. He was also unable to drive his car for a long period of time; had moderately disturbed sleep; needed some help with his activities of daily living; and stated that he could barely do any recreational activities. Tr. 307-308.

On April 28, 1999 the claimant had a neurological consultation with Dr. Alan Maloon, M.D. of Marietta Neurological Associates, who recommended that the claimant have a new cervical MRI. The claimant returned to Kennesaw Hospital on June 25, 1999, and Dr. Bonnie Anderson, M.D., a radiologist administered the MRI and found that the claimant had (1) osteophytes causing small impressions on the thecal sac in the area of the claimant’s fusion (C-3 through C-5); and (2) a right paracentral posterior protrusion of the C56 disc creating a small impression on the thecal sac.

The record is devoid of any further treatment notes from Kennestone Hospital between June 26, 1999 and June 19, 2002. During that period, as discussed in more detail infra, Dr. Barry N. Straus, M.D. of Pain Medicine Specialists administered cervical epidural steroid injections; Dr. Richard J. Stork, M.D. of Pain Consultants of Atlanta administered a trigger point injection in the claimant’s left trapezius, diagnosed degenerative disk disease in the claimant’s cervical spine and possible degenerative disk disease in the claimant’s low back, as well as myofascial pain syndrome; and Dr. Steven Marrinson performed a psychological consultative evaluation, and diagnosed the claimant as suffering from Major Depression, secondary to chronic physical problems. In May 2002, the claimant started physical therapy at Piedmont Hospital.

The claimant returned to Kennesaw Hospital on June 20, 2002, for a new cervical MRI (as requested earlier by Dr. Stork). Dr. George McCord, M.D. administered the MRI and found (1) mild posterior spurring at the C3-4 and C4-5 levels post-surgery; (2) mild bulging of the C2-3 disc making a mild impression upon the thecal sac, without central spinal stenosis or any affect on the neural foramina; (3) focal disc protrusion into the spinal canal anteriolaterally and centrally to the right, making a moderate impression upon the thecal sac at C5-6, which was a significant change since the claimant’s June 1999 MRI; and (4) mild bilateral neural foramina narrowing at C6-7, without any significant spurring or impression upon the the-cal sac. Tr. 451-452.

On December 17, 2002, the claimant returned to Kennestone Hospital for an aquatic physical therapy program, as ordered by Dr. Stork, who on October 17, 2002 had diagnosed the claimant with fibromyalgia. Physical therapist Meredith Orr evaluated the claimant and noted that the claimant had a long history of fibromyalgia symptomology, although Dr. Stork had only recently diagnosed him as suffering from fibromyalgia. At that time the claimant was very limited by his pain which fluctuated in intensity such that sometimes he was unable to walk, although he was- able to walk on the day of his evaluation. The claimant also complained that he would collapse on the floor from fatigue; his whole body ached; he was unable to sleep; he was depressed; and he was upset that he had been gaining weight. He had rigid movements; his shoulders were elevated; his ambulation was guarded; and he was unable to stand straight. Tr. 447. On December 27, 2002, after four therapy sessions, the claimant reported that his pain had decreased and he was more flexible, except in his thoracic area. Tr. 446 He returned for treatment on December 30, 2002. Tr. 453. The record is devoid of any further treatment notes from Kennesaw Hospital after that date, which is also the date of record of treatment received from any physician.

The Claimants Other Treating Physicians, Already Mentioned Above

4. Dr. Mark I. Harris, M.D.

On November 6, 1990, Dr. Mark I. Harris, M.D. evaluated the claimant for complaints of continued pain since his October 26, 1990 motor vehicle collision. The claimant reported that prior to that accident he had no neck or low back injury. Since his accident, he continued to have sharp neck pain, and some discomfort in his left hip and buttocks, with tingling in the left lower calf and toes, for which he was taking Nalfon and Lorcet. Dr. Harris noted that the x-rays taken at Kennestone Hospital immediately after the claimant’s accident were negative, and he referred the claimant to Dr. Richard M. Wolfman, M.D. of the North Atlanta Imaging Center, for a cervical MRI. Dr. Wolfman administered the MRI and found that the claimant had a herniated disc or severe annular bulge at C3-4 and C4-5, with associated cord compression at the upper level. Tr. 171-173

The claimant returned to Dr. Harris on November 26, 1990, still suffering from neck pain radiating into his left shoulder and upper arm, and some numbness and tingling in his left arm. Dr. Harris started the claimant on home cervical traction, and physical therapy; and continued him on medication (Nalfon and Robaxin). Tr. 170. The claimant reported that he was only getting temporary relief from the traction and physical therapy; and Dr. Harris advised the claimant to have a cervical epidural block, which was a three-day inpatient procedure. Dr. Harris apparently administered the epidural block; and, on February 2, 1991 the claimant reported significant improvement. Tr. 167-169. On April 4, 1991, the claimant described his neck pain as more of a “discomfort.” He had also missed his therapy sessions because he had gone out of town. Nevertheless, he was feeling better; and, in retrospect, he thought that therapy may actually have exacerbated his symptoms. Tr. 166.

One month later, on May 9, 1991, the claimant returned to Dr. Harris, complaining of significant problems with his neck, including occasional severe flair-ups. He also complained that his left shoulder felt out of place; and he had pain in his left shoulder and intrascapular region. Dr. Harris diagnosed the claimant as suffering from myofascial pain; and he prescribed nonsteroidal anti-inflammatories and heat. Tr. 165. He ordered the claimant to have x-rays; and, on May 11, 1991, Dr. Arthur L. Mulick, M.D. took the x-rays; and they showed no abnormality, fracture or dislocation. Tr. 164.

On May 17, 1991, Dr. Harris recommended that the claimant try a TENS unit; start neuromuscular therapy; and continue taking Voltaren. When the claimant asked him to recommend a neurosurgeon, Dr. Harris gave him the names of Dr.’s Schlachter, Kaufman and Disch. Apparently the claimant made an appointment and saw Dr. Disch, as the records reflect that, on May 21, 1991, Dr. Disch advised Dr. Harris that he had seen the claimant and recommended further testing, and that the claimant undergo an anterior cervical diskectomy and fusion. Tr. 162.

5. Shallowford Community Hospital

On June 20, 1991, the claimant (age 32) was admitted to the Shallowford Community Hospital, by Dr. Harris, for pre-surgical testing. Tr. 178. Dr. Arthur L. Mulick, M.D., took cervical and lumbar myelograms; followed by cervical and lumbar CT scans. The claimant’s cervical myelogram showed a mild anterior indentation on the cervical thecal sac at C45, with no nerve root cut-off. Tr. 183-184. The cervical CT scan also showed a “bulge versus mild posterior disc herniation at C6-7, with no definite cord or nerve root impingement, the significance of which was uncertain; and Dr. Mulick advised the claimant to obtain clinical correlation.” Tr. 182.

Dr. Mulick’s myelogram of the claimant’s lumbar region showed that the claimant had a bulging disc at L4-5, and anteri- or indentations on the thecal sac at L5-S1, as well, which suggested he also had a mild disc herniation at L5-S1, with mild impingement on the left SI nerve root. Tr. 183-184. The claimant’s lumbar CT scan also suggested that he had a mild disc herniation at L5-S1, with slight impingement and posterior displacement of the left SI nerve root; and a mild to moderate disc bulge at L4-5. Tr. 180-181.

6. Dr. Bert A. Loftman Piedmont Hospital

Three months later, on August 27, 1991, the claimant saw Dr. Bert A. Loftman, M.D., a neuro-surgeon, for a clinical evaluation as to whether surgery was appropriate. Dr. Loftman' evaluated the claimant and recommended that he have an anterior diskectomy at C3-4 for pain relief, and to prevent further spinal cord injury; and that he should have surgery on the disc at C4-5 at the same time. As the claimant complained of persistent pain, Dr. Loftman scheduled surgery for the following week. He performed an anterior cervical microdiskectomy at C3-4 and C4-5 on September 5, 1991; and discharged the claimant from Piedmont Hospital on September 9, 1991 (Tr. 186-204).

Five months after his surgery, the claimant was still experiencing left shoulder pain and neck pain; and, on February 18, 1992, he started rehabilitation services at Piedmont Hospital. Tr. 209-211. The claimant had returned to work, which required him to sit at a computer eight hours a day. He had also returned to physical activities, including bike riding and running. He complained that he was suffering from constant pain ranging from 2 to 7 on a scale of 0-10; and his pain was worse when he propped his left arm at a 90 degree angle, and when he was working on his computer, driving, or doing any heavy physical work. After three weeks of therapy, the claimant reported that his shoulder pain was still intense, although it was not constant. Tr. 208. Physical therapist, Karen S. Tarleton, PT discharged the claimant from therapy on March 4, 1992, because, he reported only minimal improvement, although his cervical range of motion had improved slightly. Tr. 206-207.

Six years later, on July 2, 1998, the claimant asked Dr. Loftman for a statement of his work-related restrictions. Dr. Loftman advised that the claimant’s cervical surgery in 1991 (which was stable with a good fusion) and the claimant’s degenerative lumbar disc disease at L4-5 and L5-S1 (by history), resulted in “more or less” permanent work restrictions, to wit: (1) no excessive cervical or lumbar bending, lifting, twisting, torqueing; (2) no kneeling, squatting, reaching, overhead, pushing or pulling with upper or lower extremities; (3) no standing, sitting or walking for longer than 2 hrs., without a break of ten minutes; and (4) no lifting more than 20 lbs., or carrying more than 15 lbs. Dr. Loftman also sent a copy of the foregoing restrictions to Dr. C. Dirk Williams at the Kennesaw Family Physicians. Tr. 212, 213.

7. Kennesaw Family Physicians

Kennesaw Family Physicians provided the claimant with treatment between November 17, 1990 to October 22, 1998. The claimant’s records show that most of his treatment was for sinus problems and plantar fasciitis Tr. 242-266.

On May 19, 1995, the claimant also complained of back and groin pain; and he reported that he had been suffering from low back pain since a motor vehicle accident in 1990. Tr. 255-258. On August 7, 1997, the claimant also complained that he had been suffering from depression for over twelve years. He reported that he was having discrimination problems at work; he had thoughts of hurting someone at work, but had no plans to do so; he also had suicidal ideation, but no suicidal plan. The claimant also stated that he was tired all the time; he had sleep problems; and he had lost his interest or any sense of enjoyment in life. His family physician referred him to a psychiatrist, Dr. Klopper. Tr. 250-249.

8. Dr. Beverly L. Boyd, Ph.D.

Dr. Beverly L. Boyd, Ph.D., a psychologist with the Georgia Neurology Associates, began treating the claimant for depression on July 21, 1997, at which time he complained of being under stress and being very frustrated because of his work. Although he had received outstanding ratings, he had not received a promotion in fourteen years; and he felt that his employer was discriminating against him. He was also upset because he had gained weight; his family had suffered financially and socially; his social life was very limited; and he had trouble sleeping. However, he was still happily living with his wife; and was working on a master’s degree in organization management via a correspondence program at Walden University. Tr. 372-374. The claimant gave a history of a very troubled childhood, and previous sinus and neck surgery. He was taking, inter alia, Doxepin HCL 50 mg. and Wellbutrin 150 mg. Dr. Boyd observed that the claimant’s affect was depressed, and he was anxious; but he was motivated to get better. Tr. 372-374.

When the claimant returned to Dr. Boyd on July 30, 1997, he complained that he was still being harassed at work; and he was feeling overwhelmed, depressed and frustrated: his supervisor had allegedly gone through his desk, accessed his computer, and forged his signature on a document. Tr. 371. The claimant returned on August 4, 1997, and talked at length about his job and alleged job discrimination. Dr. Boyd diagnosed him as suffering from depression, with heightened anxiety. Tr. 369. She noted that he was exhausted, and made only fair eye contact when he returned on August 11, 1997.

On August 15, 1997, Dr. Boyd diagnosed the claimant as being disabled from work due to severe depression and heightened anxiety caused by his work-related problems, which also impacted his family. She estimated that he would be able to return to work in three months. Tr. 367 The claimant saw Dr. Boyd on a weekly basis until October 2,1997. At that time he was still depressed but calm. He was also less depressed on his next visit; but, on October 14, 1997, he felt hopeless about his career. Tr. 365-366. Dr. Boyd recommended to the claimant’s employer, that it change the claimant’s work location and allow him to work only half days for the first two weeks after he returned to work. Dr. Boyd also opined that the claimant’s depression was primarily work-related; and she hoped that these added measures would help him with his adjustment back to work. Tr. 364. The record is devoid of any further treatment by Dr. Boyd.

9. Dr. Jeffrey Klopper, M.D./Dr. George Rowe, M.D. Atlanta Psychiatry and Neurology

Psychiatrist Dr. Jeffrey H. Klopper, M.D. and Dr. George Rowe, M.D. at Atlanta Psychiatry and Neurology, treated the claimant from September 9, 1997 to May 21, 1999. Tr. 287-300. In September 1997, the claimant was having sleeping problems for which his physician prescribed Doxepin. On July 24, 1998, the claimant returned reporting that he was overwhelmed; he appeared to be obsessed with his situation at work, and this was interfering with his day-to-day functioning. He was also concerned that he might act out impulsively, and continued to have trouble sleeping. Tr. 300.

On August 3, 1998, the claimant reported that he had lost control at work the prior Wednesday and had called in sick since then; he felt tired, and he was afraid that he would hurt someone, although he had no such plans to do so. Dr. Klopper started the claimant on Buspar for his panic attacks. The claimant was interviewing for another job, and said he was also about to start his own business. Tr. 299. On September 1, 1998, Dr. Klopper observed that the claimant was still focused on the harassment and discrimination he was allegedly suffering at work; he was still having trouble sleeping; and he was still looking for a new job. Dr. Klopper also observed that the claimant was visibly trembling. Tr. 298.

On September 8, 1998 the claimant reported that he was interviewing for a district manager position with an oil company; and, on September 30, 1998, he reported that he was doing well with his job hunt, but he felt tired, weak, and anxious, was concerned that his medication was slowing him down. Tr. 298. One month later, on October 30, 1998, the claimant reported that he was becoming increasingly depressed in his search for a new job; and he still felt that he would injure someone if he had to return to AT & T.

On November 27, 1998, the claimant reported that he was receiving disability benefits from AT & T, but he was still going to sue AT & T for discrimination. He complained that his memory was not good, and he was having to make notes to himself. At his next monthly visit, on December 24, 1998, he was more depressed; he was still having memory problems and difficulty with concentration; he had been unable to obtain a government job; and he did not want to return to his employer. Shortly thereafter, the claimant was accepted for a doctorate program through Walden University’s correspondence school; and in January and February 1999 he reported that he was less depressed.

However, on March 1,1999, the claimant was feeling more depressed and anxious, after AT & T allegedly told him he could not continue on disability benefits and that he had to return to work. The claimant started seeing the doctor for weekly visits. Tr. 292. On March 28,1999, AT & T terminated the claimant; and, the medical evidence of record shows that he continued to see Drs. Klopper and Rowe in April and May, 1999, and that he was suffering with heightened depression and anxiety; he could not sleep; and he was focused on suing his employer for employment discrimination. The record is devoid of any additional treatment records from Drs. Klopper or Rowe, after May 21, 1999.

10.Dr. Stanley M. Fineman, M.D.

The claimant had sinus surgery in 1987; and, in 1991, Dr. Stanley M. Fineman, M.D., at the Atlanta Allergy and Asthma Clinic, started treating the claimant for continued allergy and sinus problems. Tr. 216-233. On January 1, 1998, Dr. Fine-man opined that the claimant demonstrated significant sensitivity to dust mites, irritants, fumes, odors, chemicals and smoke, and needed to avoid exposure to all such irritants.

11. Dr. Mark Kassels, M.D.

Dr. Mark Kassels, M.D. examined the claimant’s vision on April 10, 1998. Tr. 241. On October 8, 1998, Dr. Kassels diagnosed the claimant as having glaucoma at age forty. Tr. 238.

12. Crawford Long Hospital

On September 10, 1998, the claimant sought treatment at Crawford Long Hospital for back pain; and Dr. Shubhaug Mazumdar, M.D. ordered shoulder, cervical, lumbar, and chest x-rays. Those x-rays showed no evidence of bony or soft tissue abnormalities in the claimant’s shoulder; his chest was also normal; his lumbar spine showed no fracture or compression; and there was no motion at the site of his cervical fusion, and his cervical disc spaces appeared otherwise well preserved. Tr. 235-236.

13. Dr. Felicia Pierre, D.P.M. Smyrna Clinic

Dr. Felicia Pierre, D.P.M. treated the claimant on July 13,1998 for bilateral arch pain for three years duration. The claimant reported that the pain was worse when he first got up in the morning and after sitting for extended periods of time; specifically, it was a dull, aching pain; and his arch supports did not provide any relief. Dr. Pierre diagnosed the claimant as suffering from severe plantar fasciitis, bilaterally, and flat feet; and she prescribed stretching, icing and strapping his arches. Tr. 434.-5. The claimant returned on July 20, 1998, and reported that he had experienced some relief. X-rays taken at that time showed significant medial column collapse in both feet but no pathological fractures, bony erosions or cortical breaks. At the claimant’s request, Dr. Pierre took casts of the claimant’s feet to make him permanent arch supports. Tr. 431.

14. Dr. Alan Maloon Marietta Neurological Associates

On April 28, 1999, the claimant saw Dr. Alan Maloon, M.D. at Marietta Neurological Associates, for a neurological consultation. Dr. Maloon noted that the claimant had been suffering from neck pain for more than 20 years, beginning when he was on active military duty at which time someone hit him from the back when he was jumping out of a helicopter. The claimant gave a history of being fíne after that, until he was struck from the rear in a motor vehicle accident in 1990. He subsequently had cervical surgery, but he was still having intrascapular pain radiating up into his neck, and also having low back and hip pain. The claimant also gave a history of depression and panic attacks. He was on Doxepin, Lorazepam, Wellbutrin, and BuSpar, plus allergy and glaucoma medication. Tr. 285-286.

Dr. Maloon recommended that the claimant undergo a new MRI of his cervical spine, and also obtain EMG/nerve conduction studies of both upper extremities so as to ascertain whether the claimant was having any cervical radiculopathy. Dr. Maloon put the claimant on Neurontin 100 mg. Although the claimant’s insurance company denied coverage for the MRI, Dr. Maloon administered the nerve conduction study on May 13, 1999, which was unremarkable. The claimant continued to complain that he was suffering from significant pain, and that the 100 mg. Neurontin had not given him any relief. Dr. Maloon increased the claimant’s dosage of Neurontin to 300 mg.; and referred him to Kennestone Hospital for physical therapy. The claimant was to return in six weeks to discuss whether Dr. Maloon should refer him to an anesthesiologist for an epidural block. Tr. 283-286. The claimant’s insurance company subsequently approved coverage for him to have a new MRI which was administered by Dr. Maloon on June 25, 1999. The MRI showed that the claimant had osteophytes causing small impressions on the thecal sac in the area of the claimant’s cervical fusion. The record is devoid of any evidence that the claimant returned for further treatment with Dr. Maloon.

15.Dr. Barry N. Straus, M.D. NGPC— Pain Medicine Specialists

On August 11, 1999, Dr. Barry N. Straus, M.D., a pain medicine specialist, treated the claimant for complaints of neck and low back pain. The claimant reported that his neck pain radiated into his upper right shoulder and down his right arm, with some parethesias in his fingers and shoulder. He also complained that he suffered from low back problems: his back would “lock up,” and he would have to go to the ER for relief; his pain was worse if he was bending, doing yard work or sitting; it was better if he could change positions; and he was still having trouble sleeping because of his pain.

The claimant told Dr. Straus that an MRI had shown that he had a bulging disc at C5-6 and C6-7, as well as at Tl-2. On examination, Dr. Straus found that the claimant had a normal range of motion in his right shoulder; some pain with range of motion in his left shoulder; and a positive trigger point in his left levator scapula. His muscle strength was 5/5; and his exam was negative for Tinel and Phalan responses.

Dr. Straus administered a cervical epidural steroid injection at C5-6, on August 11, 1999. Tr. 330-331. The claimant returned on August 20, 1999, and reported that the epidural injection had helped markedly. Accordingly, Dr. Straus administered a cervical epidural injection at C67. The record is devoid of any further treatment by Dr. Straus. Tr. 329.

16. Dr. Richard J. Stork, M.D. Pain Consultants of Atlanta, LLC

On March 10, 2000, seven months after the claimant saw Dr. Straus, Dr. Richard J. Stork, M.D. of the Pain Consultants of Atlanta had the claimant admitted at Piedmont Hospital for pain management services. Dr. Stork examined the claimant’s range of motion and found that the claimant had full forward flexion; his neck extension was reduced to 20 degrees; he could turn his head 75 degrees to the right, but only 15 degrees to the left; bending to both sides was restricted; and the claimant had muscle spasms in his left trapezius. Dr. Stork diagnosed the claimant as suffering from degenerative disc disease of the cervical spine, with possible facet degeneration, and myofascial pain syndrome. Tr. 484-486. As the claimant reported a “poor response” to previous epidural steroid injections, Dr. Stork prescribed muscle relaxants, anti-inflammatants and physical therapy every other day for two weeks. The claimant also agreed for Dr. Stork to,give him a trigger point injection in his left trapezius. Dr. Stork recommended delaying any evaluation of the claimant’s low back problems, until his neck problems were under better control. Tr. 486-487.

On March 27, 2000, after giving the claimant two weeks of therapy, Dr. Stork re-evaluated the claimant and diagnosed him as suffering from degenerative disk disease of the cervical spine, myofascial pain syndrome, and possible degenerative disk disease of the lumbosacral spine. The claimant’s lumbosacral pain ranging from “3 to 10” on a scale of ten; and Dr. Stork observed that the claimant also had numbness in the distribution of the left L5 nerve root. Tr. 481-483.

The medical evidence of record is devoid of any treatment notes, from any treating or consulting source, between April 2000 and April 2002, except for Dr. Marrinson’s consultative psychological evaluation in October 2000, when he found the claimant to be suffering from Major Depression secondary to chronic physical problems. The claimant returned to Dr. Stork on May 24, 2002, at which time Dr. Stork performed physical, neurological and sensory examinations; and he diagnosed the claimant with cervical degenerative disk disease and myofascial pain syndrome, and ordered a new cervical MRI (Tr. 442). On May 31, 2002, the claimant returned to Dr. Stork and complained that he was suffering from pain that was 10/10, and 12-15/10 at the worst. Dr. Stork noted that this indicated a significant emotional component to the claimant’s discomfort; and, in fact, the claimant also complained that he was moderately depressed. Tr. 473-474.

On June 6, 2002, the claimant reported that his pain had improved and was 4/10, or 7/10 at the worst. Dr. Stork noted that the claimant’s earlier MRI had shown early degenerative disk disease in his mid lower lumbar area and a probable herniation at L5-S1. Dr. Stork administered an epidural steroid injection at L5-S1. Tr. 479. On July 11, 2002, the claimant returned, and Dr. Stork advised him that the new cervical MRI that was taken on June 20, 2002 showed no significant spinal stenosis such as would require surgery; and he administered a cervical epidural injection at C6-7. On August 11, 2002 the claimant reported that he felt a 50% reduction in his cervical pain for two weeks; and he still felt 25% better. Tr. 464. Dr. Stork prescribed Ultram 50 mg. (100/ month) (a non-narcotic pain medication) and Zanaflex, 4 mg. To help control the claimant’s pain.

The claimant missed his appointments in late August, and in September. He returned to Dr. Stork on October 2, 2002, at which time Dr. Stork administered an epidural injection at L5-S1. On October 17, 2002, the claimant returned and complained that the pain medication (Ultram and Zanaflex) had not provided him with any relief; he was waking up in severe pain with spasms in the middle of the night; he was in the most severe pain in the mornings; he had recently been placed on a new anti-depressant (but could not recall the name of the medication). Dr. Stork examined the claimant and found that 17 out of 18 pressure points were positive; and he, therefore, diagnosed the claimant as suffering from fibromyalgia. He prescribed anti-inflammatories, and physical therapy; and asked the claimant to call the Pain Clinic with the name of his anti-depressant as some were better for fibromyalgia than others. (Tr. 438^442).

17. Piedmont Medical Center

When the claimant started therapy at the Piedmont Pain Clinic on May 24, 2002, he reported that changing positions did not decrease his pain; his pain was as high as 12-15 on a scale of 0-10; his pain was worse at night; and he was moderately depressed. Tr. 493-494, 500-501. On May 31, 2002, the claimant complained of upper back pain on the left side, which he rated as 7/10 (Tr. 499, 491). On July 11, 2002, he rated his upper and lower back pain as 4/10; and Dr. Stork administered a cervical epidural steroid injection, as already noted above; and, on August 1, 2002, the claimant reported that his pain had improved to 3/10, and, at best, 2/10. (Tr. 498, 489). In subsequent visits on August 29, September 9, and October 17, 2002, he reported that his back pain and leg pain were 4/10. (Tr. 436-437, 490, 495-496, 488). The record is devoid of any further treatment at Piedmont Medical Center.

Consulting Mental Health Physicians

18. Dr. Steven Marrinson, Ph.D., P.C.

On October 19 and 24, 2000, psychologist, Dr. Steven Marrinson, Ph.D., administered a battery of psychological tests to the claimant, including a Psychiatric Review Technique Form (PRTF) that he signed on October 23, 2000, and a “Supplemental Questionnaire as to Residual Functional Capacity” that he signed on October 24, 2000. Dr. Marrinson also administered the MMPI-2 (the Minnesota Multi-phasic Personality Inventory), a test of adult psycho pathology, consisting of 400 questions. Most people can complete the MMPI-2 in an hour and a half; the claimant took almost three hours to complete such test. Tr. 349, 351. His MMPI-2 Validity Scales suggested to Dr. Marrinson that the claimant might have exaggerated his psychiatric symptoms; but Dr. Marrinson administered the Rorschach Inkblot test which “is very difficult to fake,” and found that the claimant’s Rorschach results were consistent with his MMPI-2 results (i.e., both tests showed the same clinical results) (Tr. 349).

Dr. Marrinson also found that the claimant’s MMPI-2 and Rorschach test results were consistent with the claimant’s complaints during his interview and his answers on The Daily Living Questionnaire (which he was not able to finish). The claimant reported that he had difficulty focusing to read and write, and, as a result, he was taking much longer to complete tasks. Tr. 350. He also had memory problems; as evidenced when he forgot that he had left food cooking on the stove, and had forgotten to meet his children when they got off the school bus. Dr. Marrinson found that the claimant’s complaints were consistent with his difficulties completing the MMPI-2 and the The Daily Living Questionnaire. Dr. Marrinson also observed that the claimant had to frequently shift his position; and he got in and out of his chair, and held his back with his hand as if to provide it with more support. Tr. 351.

Dr. Marrinson diagnosed the claimant as meeting and equaling a listed impairment under Appendix 1 for major depression (an Affective Disorder, § 12.04), characterized by: appetite disturbance, sleep disturbance, decreased energy, feelings of guilt and worthlessness, difficulty concentrating, suicidal thoughts, and possible paranoid thinking. Tr. 354. Dr. Marrinson also concluded that the claimant’s impairments had resulted in a marked restriction of his (1) activities of daily living; and (2) social functioning; and (3) his concentration, persistence or pace (i.e. his ability to complete tasks in a timely manner). Tr. 358.

In a “Supplemental Questionnaire as to Residual Functional Capacity,” administered on October 24, 2000, Dr. Marrinson concluded that the claimant was:

(1) moderately impaired in

(a) his ability to relate to others; and

(b) his ability to respond appropriately to supervision. And

(2) had “moderately severe” restrictions in

(a) in his daily activities;

(b) the degree of constriction of his interests;

(c) his ability to understand, carry out and remember instruction;

(d) his ability to respond appropriately to co-workers; and

(e) his ability to maintain attention/concentration. And (3) had severe impairments regarding his ability to

(a) respond to customary work pressures;

(b) perform simple tasks;

(c) perform complex tasks;

(d) perform repetitive tasks; and

(e) perform varied tasks. Tr. 359-360.

In Dr. Marrinson’s opinion, the claimant’s allegations of pain were credible and consistent with the clinical psychological findings, and the claimant’s pain so interfered with his concentration that he was severely limited in his ability to sustain any job performance over time. Dr. Marrinson further concluded that the claimant’s physical pain and his depression were mutually reinforcing medical problems, that, in combination, constituted a severe impairment. Tr. 360.

19. Dr. David B. Rush, Ph.D.

On September 10, 2002, after the Appeals Council remanded the claimant’s case to the ALJ for a new hearing, the claimant saw Dr. David B. Rush, Ph.D., for a new psychological evaluation. Dr. Rush interviewed the claimant; and his psychometrist, Dr. Diana Gordick, Ph.D., administered a battery of psychological tests including a Mental Status Examination, Wide Range Achievement Test — Revision 3 (WRAT-3), and Wechsler Adult Intelligence Scale — Third Edition (WAIS-III). Tr. 424. Dr. Rush also reviewed the claimant’s medical records from Drs. Boyd, Klopper and Rowe; but he, apparently, did not review Dr. Marrinson’s consultative report from October 2000.

At that time, the claimant reported that he had been suicidal when he applied for Social Security benefits three years earlier, but denied any current intention to injure himself. Tr. 424, 426. He was on (an unspecified) pain medication, four times daily; he had an epidural injection one month previously; he was taking sleeping pills and Zyrtee, and he used nose spray twice daily. Tr. 425.

The claimant told Dr. Rush that his typical day included getting his children ready for school, and then dealing with various household tasks (he would clean the house, prepare meals, wash dishes, and do laundry). Dr. Rush noted that the claimant could also use a telephone; drive himself; and manage his own budget; and he was working on getting a doctorate degree, and personally handling his legal and insurance issues. When he had trouble remembering things, the claimant would write them down.

Dr. Rush found that the claimant demonstrated the ability to follow three stage commands, carry out detailed instructions, initiate tasks, and complete a task in a reasonable time period. Dr. Rush also observed that the claimant had arrived for his evaluation an hour and 15 minutes late; he leaned to one side while standing, and held himself to one side when sitting; and the claimant’s affect was somewhat limited. The claimant appeared to be calm, but irritable; and he repeatedly expressed frustration over discrimination that he allegedly suffered while serving in the army, working at AT & T, and socially.

Dr. Rush had difficulty getting the claimant to give him clear answers regarding dates, duration and his symptomology. The claimant acknowledged symptoms of obsessive-compulsive disorder, but supplied little in the way of accurate examples of his symptoms. He felt that he had improved; and he was able to complete timed intelligence tests in adequate time. Dr. Rush opined that the claimant’s attention and concentration were within normal limits. He found that the claimant exhibited consistent effort; worked persistently; was surprised that some questions were difficult; and tried to guess on questions where he did not know the answer. Nonetheless, Dr. Rush thought the claimant had not extended his full effort on memory questions. Tr. 425-426. According to Dr. Rush, the claimant’s full scale IQ was 90; his verbal IQ was 95, and his performance IQ was 84.

Utilizing the DSM-IV, Dr. Rush diagnosed the claimant with: an Axis I of a Cognitive Disorder NOS (294.9) and an Obsessive-Compulsive Disorder (300.3); no Axis II diagnosis; and an Axis III of History of Spinal Injury and Degenerative Disc Disease (per patient report). Tr. 427. Dr. Rush opined that, without regard to any of the claimant’s physical limitations, he was otherwise able to work forty hours per week in a competitive environment. Tr. 427.

Non Examining Physician

20. Dr. Robert Willingham, Jr., M.D.

Dr. Robert Willingham, Jr., M.D., a non examining, agency, orthopedic consultant, reviewed the claimant’s medical records and completed a Medical Consultant’s Case Analysis on June 24, 1999. He found that the claimant had undergone a cervical fusion at C3-4 and C4-5, and suffered from continued chronic low back pain, with no lumbar fracture or subluxation identified. He found no evidence of any significant motor, sensory or reflex deficits. Tr. 301-302.

Dr. Willingham also completed a Residual Functional Capacity Assessment, on June 22, 1999; and concluded that, based on a primary diagnosis of low back pain and secondary diagnosis of an anterior cervical fusion at C3^4 to C4-5, the claimant could: lift or carry 50 pounds; frequently lift or carry 25 pounds; stand or walk approximately 6 hours; and sit for 6 hours, with normal breaks; and had, inter alia, an unlimited ability to push and pull; no postural limitations, and no environmental limitations other than to avoid concentrated exposure to fumes, odors, dusts, gases and poor ventilation (minimal allergic). Tr. 332-347.

On September 10, 1999, Dr. Willingham completed a second Physical Residual Functional Capacity Assessment; and concluded that the claimant’s primary diagnosis was post cervical fusion, and his secondary diagnosis was low back pain, with the same restrictions or limitations as he noted earlier, with one change: the claimant did not have an environmental limitation due to allergies. Tr. 332-339.

B. THE SUBJECTIVE MEDICAL TESTIMONY

1. The October 26, 2000 de novo Hearing

At his first de novo hearing, where he was represented by counsel, the claimant testified that he had been injured while serving in the military 23 years previously; and his injuries were exacerbated by an automobile accident in 1990. He had undergone a cervical fusion in 1991. In 1997, he went on a disability leave of absence from his job because of severe depression and anxiety when AT & T allegedly would not accommodate his physical limitations; and on March 28, 1999, AT & T had terminated him while he was still out on disability leave, and his disability benefits had ceased. Tr. 679-680. The claimant’s wife’s income supported their household and their three children (ages 12, 10 and 8 at that time). Tr. 687.

The claimant testified that he was never pain free, and had constant spasms. He had tried numerous pain medications, and trigger point injections. He was trying to use only over-the-counter medication for pain; and, when the pain became unbearable, he would get an epidural injection. Most recently, he had a lumbar epidural steroid lumbar injection two weeks before the hearing, and a cervical epidural steroid injection three or four months before that. Tr. 697, 680-681. The claimant did therapy on his own, because he could no longer afford to go to therapy. Tr. 685-686. He had to do stretching exercises before he could get out of bed; some days he could not get up; and other days he had to go back to bed; and he was depressed. Tr. 684-5.

The claimant’s daily activities, to the extent he was able to do them, included making his children’s school lunches; getting them off to school; and going to a gym to do his therapy exercises. Specifically, he would do stretching and back strengthening exercises; and he used a heated pool and the whirlpool. When his children got home from school, he would help them with homework; and he tried to do what he could to help with laundry and cooking; and he also looked for jobs each day, online. Tr. 681-682; 691-692. The claimant also testified that he still helped with mowing the yard, albeit one small section at a time over the course of a week, with help from his family. Tr. 684. He could no longer bowl, play golf, or even sit through a movie. Tr. 682-683. He was still working on the doctorate degree that he started in 1998; but he had trouble focusing and was taking nine months to one year to complete an assignment, compared to other students who took only a month or two to complete the assignment. Tr. 696, 699-700. The claimant also complained that he had memory problems, and had forgotten that he had food cooking on the stove, and also forgot to meet his children at the school bus stop. Tr. 681-684.

The claimant had driven himself to the hearing, while suffering a great deal of pain; and he testified that he did not drive, except to go to his therapy at the gym or to pick up groceries (which his wife and children would help him bring into the house). He had also driven to a family reunion in Cincinnati, by sharing the driving with his wife and her sister, and taking frequent stops. Tr. 681, 700.

When he was working for AT & T, the claimant had conflicts with his supervisors because they allegedly did not attempt to accommodate the work restrictions imposed by his doctors. As a result of this conflict he became severely depressed and anxious; and his psychiatrist, Dr. Klopper, had ordered that he take a disability leave of absence. The claimant felt that he could have continued to work at his regular job, if AT & T had accommodated his need to change his work position and take breaks. Tr. 689. Since his termination, he had obtained a job at a Sheraton Hotel as a front desk clerk; but he quit after a month and a half, because the job required him to stand constantly, which exceeded his capacity. Tr. 680. He felt that he was unable to work, but he had no choice, as he has a family to support; and, therefore, he was looking for an auditing or administrative job that might accommodate his restrictions. Tr. 691.

2. The April 23, 2003 de novo Hearing

At his second de novo hearing, the claimant elected to proceed pro se. He had reviewed his Social Security file immediately preceding the hearing; and he did not think that his medical file portion of the record was complete: he thought that some of his medical records from Drs. Boyd, Rowe and Klopper were missing (Tr. 709), and that the medical records on his treatment for chronic myofascial pain syndrome and fibromyalgia were also not in his file. He was also upset because had forgotten to bring his medications with him; and he had requested, but never received, a copy of Dr. Rush’s report, although immediately before the hearing, he had been given the opportunity to read a copy thereof contained in his file; and he wanted the ALJ to give him the opportunity to respond to Dr. Rush’s report after the hearing. Tr. 710.

The ALJ reminded the claimant that, as the claimant, he was responsible for submitting his medical records, and almost a year had passed during which time he could have done so; and he could also have reviewed his records earlier. The ALJ advised the claimant that, nonetheless, he could have 30 days to submit any additional records that were still outstanding, particularly anything from 2002-2003, or any records from Drs. Boyd, Klopper or Rowe that were missing. He also a