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Holt v. Commissioner of Social Security

United States District Court, Sixth Circuit

August 6, 2013

WAYNE HOLT, Plaintiff,


JAMES R. KNEPP, II, Magistrate Judge.


Plaintiff Wayne Holt seeks judicial review of Defendant Commissioner of Social Security's decision to deny Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB). The district court has jurisdiction under 42 U.S.C. ยงยง 1383(c)(3) and 405(g). This case was referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2. (Non-document entry dated September 21, 2012). For the reasons given below, the undersigned recommends affirming the Commissioner's decision.


Procedural History

On December 18, 2008, Plaintiff filed applications for SSI and DIB claiming he was disabled due to herniated discs at L4 and L5 resulting from a car accident on September 6, 2008, his alleged onset date. (Tr. 155, 158, 205). His claims were denied initially (Tr. 74, 77) and on reconsideration (Tr. 80, 83). Plaintiff then requested a hearing before an administrative law judge (ALJ) and was 30 years old when the hearing was held on September 28, 2010. (Tr. 27, 89, 140). Plaintiff (represented by counsel) and a vocational expert (VE) testified at the hearing, after which the ALJ found Plaintiff not disabled. (Tr. 21, 27).[1]

Vocational History and Reports to the Agency

Plaintiff previously worked installing carpet with a friend, stacking boxes, performing general labor, and changing oil in vehicles. (Tr. 179, 194, 206, 216, 220). In the application at issue on this appeal, Plaintiff stated he completed tenth grade in special education classes. (Tr. 210). The Cleveland Metropolitan School District submitted a letter stating it did not have copies of individual education plans (IEPs) created for Plaintiff. (Tr. 256). The district explained this could be because the records had been destroyed pursuant to district and state regulations or because Plaintiff did not receive special education services. (Tr. 256).

Plaintiff said he suffered constant severe lower back pain made worse by walking, standing, sitting, climbing, stooping, and sleeping. (Tr. 227-28). He said he could relieve his pain using heat, ice, massage, changing positions, a TENS unit, back brace, and physical therapy, but reported these measures did not always work. (Tr. 229). He also reported taking Percocet and Soma. (Tr. 252).

Medical History

On September 6, 2008, Plaintiff went to the emergency room after he was in a car accident and suffered injuries to his head and back. (Tr. 292). He was in no acute distress but suffered from mild pain, muscle spasms, and a decreased range of motion. (Tr. 292-93). Neck and back x-rays revealed degenerative joint disease at L4-5 but were otherwise normal. (Tr. 294). On September 10, 2008, x-rays showed hypolordosis and towering of the lumbar spine, along with postural subluxations, but further investigation was needed due to Plaintiff's antalgic posture and discomfort. (Tr. 356). On September 11, 2008, Plaintiff complained of neck and back pain but was in no acute distress, appeared well, had a normal gait, and was independent in activities of daily living. (Tr. 296). He reported significant pain and was prescribed Percocet, after which his pain reduced. (Tr. 297).

On September 12, 2008, Plaintiff saw Dr. Edward Gabelman at Beachwood Orthopedic and Physical Medicine regarding his injuries and explained he also herniated a disc in 2006. (Tr. 321). Dr. Gabelman noted Plaintiff did not receive treatment for that injury but was given pain medication periodically when he presented to the hospital with pain flare-ups. (Tr. 321). Plaintiff said he was also injured in 2007 when 30 males jumped him as he left a store, kicking him in the back. (Tr. 321). He did not seek treatment for that injury. (Tr. 321). Additionally, Plaintiff reported he injured his neck and back in a July 2007 car accident and went to physical therapy, but the pain never completely subsided. (Tr. 321). He also reported his work involved heavy physical labor and his chiropractor "ha[d] him disabled." (Tr. 321).

Dr. Gabelman stated Plaintiff's lumbar back pain had worsened, was constant and severe, sometimes radiated into his legs, and was sometimes associated with numbness and tingling. (Tr. 321). Plaintiff was in moderate discomfort and moved in a guarded manner, with a slow and deliberate gait. (Tr. 322). His neurological examination was normal, but Plaintiff's lumbar spine examination revealed his trunk was bent forward and he suffered moderate paraspinal spasms, tenderness, and restriction of all motion. (Tr. 322). His straight leg raise test was bilaterally positive at 70 degrees. (Tr. 322). Dr. Gabelman diagnosed neck and lumbar sprains and prescribed Percocet, Flexeril, and a lumbar brace. (Tr. 322-24). He also noted Plaintiff "was felt to be disabled from work until further evaluation". (Tr. 323).

Plaintiff followed up at Beachwood with Dr. Daniel Leizman on September 26, 2008, reporting Flexeril was not helpful. (Tr. 325). He was in moderate discomfort and did not seem to exaggerate his symptoms. (Tr. 326). Plaintiff's lumbar spine examination showed his trunk was bent forward, with moderate tenderness at the lumbosacral junction and severe restriction. (Tr. 326). A seated slump test exacerbated his lower back pain. (Tr. 326). X-rays showed mild degenerative disc disease at L5-S1 and straightening of the normal cervical lordotic curve, probably secondary to muscle spasm. (Tr. 466). On October 8, 2008, Dr. Leizman diagnosed sprains and displacement of lumbar intervertebral disc, prescribed a TENS unit, and continued Plaintiff's medication. (Tr. 329). Plaintiff "was felt to be disabled from work until further evaluation." (Tr. 330). When Plaintiff was instructed on proper TENS unit use, he "seem[ed] to have a good understanding of how to use the unit." (Tr. 331).

Plaintiff followed up with Dr. Leizman on October 29, 2008 and had moderate tenderness in his paraspinal musculature at the lumbosacral junction, along with severe restriction. (Tr. 333). The seated slump test bilaterally exacerbated his lower back pain. (Tr. 333). Notes indicated a lumbar spine MRI showed a right paracentral disc herniation at L4-5, bilateral frontal compressive stenosis, and transitional L5 with sacralization. (Tr. 334). Dr. Leizman ordered lumbar epidural injections and continued use of the TENS unit, lumbar bracing, and medication. (Tr. 334). Notes still indicated Plaintiff was disabled from work pending further evaluation. (Tr. 335). Plaintiff received the injections on November 4, 2008 and tolerated the procedure well. (Tr. 336). On November 18, 2008, Plaintiff was in no apparent distress but his condition was largely unchanged, and Dr. Leizman recommended he continue treatment, wean off Percocet, and attend physical therapy three times a week for three weeks. (Tr. 340-41). Notes still indicated he was disabled from work. (Tr. 342).

On January 14, 2009, orthopedic surgeon Dr. Robert D. Zaas wrote to Plaintiff's chiropractor Dr. Alex Frantzis after evaluating Plaintiff. (Tr. 353). He said Plaintiff had a history of lower back pain but had not experienced much difficulty with his back prior to the accident.[2] (Tr. 353). Plaintiff told Dr. Zaas he eventually lost his job due to his inability to function. (Tr. 353). Dr. Zaas explained Plaintiff's most severe and disabling symptoms involved his lower back. (Tr. 353). He said chiropractic treatments temporarily improved mobility but Plaintiff was sometimes sore after a session. (Tr. 354).

Plaintiff was in considerable distress, uncomfortable sitting, and in worse pain if he stood. (Tr. 354). His pain was localized to the low lumbar spine and he complained of radiating pain into his hips and upper thighs. (Tr. 354). Plaintiff had widespread local tenderness from his mid-lumbar spine across the lumbosacral junction, with tenderness present even to the lightest touch at the L4-L5 levels. (Tr. 354). Forward bending, lateral tilting, and lumbar extension were all painfully guarded and Plaintiff said even the slightest movement caused a great increase in pain. (Tr. 354). Walking increased his pain and "was carried out with effort" and straight-leg raising beyond 40 to 45 degrees caused pain, but Plaintiff did not complain of weakness or sensory loss in either lower extremity. (Tr. 354). Dr. Zaas diagnosed a spraining injury to the cervical and lumbar spine, possible disc herniation in the lower lumbar spine, and history of preexisting lumbar condition aggravated by the September 2008 car accident. (Tr. 355). He noted it was difficult to locate the exact structural source of Plaintiff's incapacitating back pain on clinical grounds and explained he had not developed symptoms typical of radiculopathy. (Tr. 355). Dr. Zaas prescribed Percocet and Soma and advised Plaintiff to continue chiropractic treatment. (Tr. 355).

Plaintiff saw Dr. Zaas again on February 3, 2009 and was not doing very well. (Tr. 357). He thought his chiropractic treatment helped improve his mobility, but severe back pain caused him trouble standing straight and he had very limited flexion-extension on lateral movement. (Tr. 357). Plaintiff also complained of pain radiating past his hips, but not in a typical radicular pattern. (Tr. 357). He complained of midline and paraspinous pain and muscle spasms through the lower lumbar spine, and straight leg raising was slightly more limited on the right. (Tr. 357). Plaintiff could stand with his full weight on either leg without greatly increasing symptoms, but he complained of increased pain when he walked. (Tr. 357). Plaintiff wanted to see a spine surgeon to determine if he was a candidate for spine surgery. (Tr. 357). On May 18, 2009, an MRI of Plaintiff's lumbar spine revealed a herniated disc at L5-S1. (Tr. 457).

The next record from a medical doctor detailed a March 22, 2010 appointment with Dr. M.P. Patel, who noted Plaintiff reported neck pain with associated headaches, recurring shoulder pain, and constant lower back pain following a March 3, 2010 car accident. (Tr. 597). Plaintiff also reported significant difficulty walking, standing, bending, or lifting for an extended period. (Tr. 597). Examination of Plaintiff's lumbosacral spine revealed tenderness and spasms, with restricted range of motion, painful straight leg raising, and abnormal reflexes. (Tr. 598). Dr. M.P. Patel prescribed pain medications. (Tr. 598). On March 29, 2010, Dr. M.P. Patel noted Plaintiff was experiencing recurring sharp, radiating back pain. (Tr. 600). His neck, shoulders, and lumbar spine were tender, with restricted ranges of motion. (Tr. 600, 602).

Plaintiff returned to Dr. M.P. Patel on April 8, 2010 and reported recurring neck pain with some radiation, occasional shoulder exacerbations, and moderate recurring lower back pain aggravated with bending or lifting. (Tr. 577). Plaintiff's lumbar spine showed generalized mild tenderness and spasms, with a restricted range of motion. (Tr. 578). Dr. M.P. Patel increased Plaintiff's Soma dose and instructed him to engage in a home exercise program. (Tr. 578). On April 20, 2010, Dr. M.P. Patel noted Plaintiff had lower back tenderness, spasms, and restricted mobility. (Tr. 603). The following week, Dr. M.P. Patel noted Plaintiff complained of recurrent back pain with significant difficulty walking, standing, and climbing or descending stairs, along with episodes of numbness and tingling. (Tr. 605). He had mild-moderate tenderness in his lower back, trigger points in the paraspinal and pelvic musculature bilaterally, and his range of motion was restricted. (Tr. 605).

Plaintiff saw Dr. M.P. Patel on May 5, 2010 and complained of pain in his neck, shoulders, and lower back. (Tr. 576). He continued to have moderate recurring lower back pain and increasing discomfort when walking or standing, with occasional radiating pain and paresthesia in his legs. (Tr. 576). There was tenderness over the lumbar spinous process and paraspinous muscular masses, with spasms in the paralumbar muscles and a restricted range of motion. (Tr. 576).

On May 21, 2010, Dr. Zaas wrote to Plaintiff's chiropractor Dr. Scott Van Oosten after evaluating Plaintiff and indicated Plaintiff underwent a right L5-S1 hemilaminectomy/discectomy on June 29, 2009 to treat his prior back pain, explaining Plaintiff continued to experience pain after surgery, but "his back symptoms became markedly intensified" after the more recent car accident. (Tr. 569). Dr. Zaas said Plaintiff's pain was worse on the right side and he still experienced radiating pain into his right leg. (Tr. 569). On examination, Plaintiff could move fairly well but complained of pain in his back, right hip, and right thigh as he stood from a seated position. (Tr. 570). He had a bilateral lower lumbar muscle spasm, more marked on the right side, and his straight leg raising was also more marked on the right, with mild to moderate atrophy in his right quadriceps. (Tr. 570). Plaintiff complained of diminished sensation over his right calf and foot and his right leg showed generalized weakness. (Tr. 570). Dr. Zaas diagnosed spraining injuries to Plaintiff's spine, symptomatic aggravation of preexisting post-laminectomy pain, and a spasm in the right lower lumbar spine. (Tr. 570). He could not rule out a recurrent or second-level disc herniation and opined Plaintiff's symptoms were substantially caused by the March 2010 car accident. (Tr. 570). Dr. Zaas prescribed Soma and Percocet and found the prognosis for Plaintiff's lumbar spine was guarded given his history. (Tr. 570).

Plaintiff returned to Dr. Zaas on June 15, 2010 and complained of continued and worsening back pain on both sides, with the right still more symptomatic than the left. (Tr. 572). Dr. Zaas noted Plaintiff could stand and walk with a somewhat short-strided gait without a limp. (Tr. 572). He said Plaintiff's back pain became more marked on the right side as Plaintiff remained standing, and he believed there was considerably more right-sided muscle spasm in the lower lumbar spine, along with tenderness over the midline and lower portion of the midline lumbar scar. (Tr. 572). There was also slight atrophy on the right side and straight leg raising was much more limited on the right, but Plaintiff had "surprisingly good motor power of both legs below the knees". (Tr. 572). On July 7, 2010, Plaintiff complained of radiating pain into his right calf. (Tr. 573). He also complained of increased back and leg pain when he stood and kept most of his weight on his left leg. (Tr. 573). Dr. Zaas noted predominantly right-sided lumbar muscle spasms, which painfully limited Plaintiff's range of motion. (Tr. 573). Straight leg raising was more limited on the right, with 3/8-inch atrophy on Plaintiff's right thigh. (Tr. 573). However, motor power in both legs below the knees remained within normal limits. (Tr. 573).

On July 21, 2010, an MRI of Plaintiff's spine revealed a large soft-tissue process in the right lateral recess at the location of Plaintiff's previous disc herniation, which either represented fragmented disc material or scar tissue. (Tr. 574). There was no foramen compromise or thecal sac stenosis. (Tr. 574).

On August 11, 2010, Dr. Zaas saw Plaintiff and observed that Plaintiff underwent lumbar spine surgeries in June 2009 and July 2009. (Tr. 593). Plaintiff appeared to be in considerable distress. (Tr. 593). He could stand and walk but preferred to keep most of his weight on his left leg and had muscle atrophy in his right leg. (Tr. 593). He had abnormal ankle reflexes and straight leg raising was more limited on the right than the left. (Tr. 593). Plaintiff complained of tenderness and stiffness in his lower back, and attempted lumbar flexion was painfully guarded. (Tr. 593). Dr. Zaas stated Plaintiff's persisting symptoms and physical findings were consistent with post-laminectomy radiculopathy in the right lower lumbar region, symptomatic aggravation of preexisting pain ...

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