United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
KATHLEEN B. BURKE MAGISTRATE JUDGE
Miguel Figueroa (“Figueroa”) seeks judicial
review of the final decision of Defendant Commissioner of
Social Security (“Commissioner”) denying his
application for Supplemental Security Income
(“SSI”). Doc. 1. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned Magistrate Judge pursuant to the consent of the
parties. Doc. 14.
forth more fully below, the Administrative Law Judge
(“ALJ”) erred when she failed to follow the
treating physician rule in considering the opinion of
Figueroa's treating physician, Dr. Morton. Specifically,
the ALJ assigned “some” weight to Dr.
Morton's opinion, but she did not consider whether it was
supported by medically acceptable clinical and laboratory
diagnostic techniques or consistent with other substantial
evidence in the record, nor did she provide good reasons for
giving it less than controlling weight. As a result, the
undersigned recommends that the Commissioner's decision
be REVERSED and REMANDED for further proceedings consistent
with this opinion.
filed an application for SSI on January 7, 2013, alleging a
disability onset date of January 1, 2008. Tr. 193. He alleged
disability based on the following: mental illness and
breathing issues. Tr. 228. After denials by the state agency
initially (Tr. 124) and on reconsideration (Tr. 140),
Figueroa requested an administrative hearing. Tr. 77. A
hearing was held before Administrative Law Judge Penny Loucas
(“ALJ”) on November 17, 2014. Tr. 34-75. At the
hearing, Figueroa amended his alleged onset date to June 21,
2012. Tr. 36-37. In her January 8, 2015,
decision (Tr. 20-29), the ALJ determined that there are jobs
that exist in significant numbers in the national economy
that Figueroa can perform, i.e., he is not disabled. Tr. 28.
Figueroa requested review of the ALJ's decision by the
Appeals Council (Tr. 15) and, on March 10, 2016, the Appeals
Council denied review, making the ALJ's decision the
final decision of the Commissioner. Tr. 1-3.
Personal and Vocational Evidence
was born in 1968 and was 44 years old on the date his current
application was filed. Tr. 28, 193. He completed eleventh
grade. Tr. 60. He previously worked as a laborer in a
refrigeration plant and a bagger and cart person at a grocery
store. Tr. 56-59.
Relevant Medical Evidence
2003, Figueroa had an MRI of his lumbar spine that showed
degenerative changes that were the worst at ¶ 4-5, where
there was “a moderate degree of spondylostenosis, with
narrowing of the spinal canal” and mildly narrowed
neural foramina with no significant compromise to the
existing nerve roots. Tr. 1167-1168.
March 22, 2013, Figueroa went to the emergency department for
a depressed mood. Tr. 470. He explained that he missed his
group therapy that morning, which he usually attended three
times a week. Tr. 470. Upon physical exam, he had a normal
gait and was able to move all extremities. Tr. 472.
22, 2013, Figueroa saw Elva Thompson, CPN, complaining of
difficulty breathing, abdominal pain that goes up to his left
chest, and black stools. Tr. 400. Upon exam, his back was
symmetric, he had no curvature or tenderness, and he had a
normal range of motion in his spine. Tr. 400-401. His
extremities were normal and he had a normal gait, sensation,
and pulses. Tr. 401. Thompson diagnosed him with angina; she
noted that his pain improved with nitroglycerin and
recommended that he go to the emergency room. Tr. 401. Upon
examination in the emergency room, his extremities had no
cyanosis, edema, or clubbing; his musculoskeletal strength
was symmetric and 5/5; his gait was normal; and his sensation
was grossly intact. Tr. 387.
28, 2013, Figueroa followed up with Thompson. Tr. 369. His
chest pain had resolved but he still had left abdominal pain.
Tr. 369. He denied arthritic pain, joint swelling, and muscle
weakness. Tr. 370. Upon exam, his extremities were normal and
he had intact muscle strength. Tr. 371. He had normal pulses,
reflexes and sensation, a normal range of motion in his
spine, his back was symmetric with no curvature or
tenderness, and his gait was normal. Tr. 371.
29, 2013, Figueroa had a CT scan of his abdomen and pelvis.
Tr. 381-382. The scan revealed degenerative spurring in the
superior acetabulum (hip) bilaterally, right greater than
left, and which may relate to femoral acetabular impingement
syndrome. Tr. 382. The reviewer wrote, “Clinical
correlation with pain is suggested; elected orthopedic
consultation may be obtained if clinically warranted.”
4, 2013, Figueroa returned to Thompson for a follow-up visit.
Tr. 364. His abdominal pain had resolved. Tr. 364. He
complained of back and left hip pain for the past week. Tr.
364. Upon exam, he had positive midline and paraspinal
tenderness with muscle spasm in his left paraspinal lumbar
region, positive straight leg raising in his left leg, and
decreased range of motion in his left hip. Tr. 365. He had a
normal gait, normal and symmetric reflexes, and grossly
intact sensation. Tr. 365. Thompson referred Figueroa to
orthopedics. Tr. 365.
18, 2013, Figueroa returned to Thompson for a follow-up
visit. Tr. 560. He complained of left hip discomfort and
stated that he was no longer able to ride his bike due to hip
pain. Tr. 560. Upon exam, he had paraspinal tenderness in his
lumbar region, bilateral hip tenderness, and decreased range
of motion; he also had a normal gait, normal and symmetric
reflexes, and grossly intact sensation. Tr. 561. Thompson
again referred Figueroa to orthopedics. Tr. 561.
8, 2013, Figueroa saw Michael Silverstein, M.D., of the
orthopedic surgery department. Tr. 566-567. Figueroa reported
hip (left greater than right) and back pain that was made
worse when going from a sitting to standing position and
improved when lying down. Tr. 566. Upon exam, he ambulated
without assistance, had full strength in his right and left
lower extremities, and intact sensation. Tr. 566. He had left
lower extremity pain with hip flexion and adduction. Tr. 566.
Dr. Silverstein recommended Figueroa attend his upcoming
appointment with pain management and rehabilitation
(“PM&R”) and weight bear as tolerated. Tr. 567.
saw Thompson the next day, reporting that he needed x-rays of
his spine. Tr. 571. Upon exam, he had bilateral hip
tenderness and decreased range of motion, but an intact
sensory exam, normal and symmetric reflexes, and a normal
gait. Tr. 572. A lumbar x-ray showed no abnormalities. Tr.
22, 2013, Figueroa went to PM&R and saw A. Sophia Tritle,
M.D., complaining of left hip pain. Tr. 578. He reported that
he has had pain bilaterally for years and that it gradually
had worsened. Tr. 578. The pain, left side much greater than
right, was achy and sometimes radiated to his back or knee
and worsened with activity. Tr. 578. It sometimes woke him at
night. Tr. 578. He reported that he likes to be “quite
active” but was limited in his ability to walk for long
distances and play with his children. Tr. 578. Because of his
history of substance abuse, he did not want to take a
narcotic for pain. Tr. 578. He had taken Naproxen
“sporadically in the past, ” which “did
seem to help” but “he ran out.” Tr. 578. He
also reported that he currently took “an occasional
Robaxin” which seemed to help somewhat. Tr. 578. Upon
exam, he had normal reflexes in his bilateral lower
extremities, negative Babinski's sign bilaterally, normal
sensation, and 5/5 strength bilaterally. Tr. 580. His pelvis
was symmetric, he had normal lumbar lordotic curve and no
evidence of scoliosis. Tr. 580. He had a mild decrease in
forward flexion with end of range pain and tenderness of his
lumbosacral paraspinal muscles bilaterally upon palpation,
with no evidence of spasm. Tr. 580. He had negative straight
leg raising tests seated and supine and a negative FABER
test. Tr. 580. His hip exam showed pain and
limitations with flexion and internal rotation. Tr. 580. Dr.
Tritle prescribed Naproxen, a left hip injection, hip x-rays,
and physical therapy. Tr. 581.
August 14, 2013, Figueroa received a left hip injection. Tr.
underwent physical therapy from August 15, 2013, to October
8, 2013. Tr. 603-607, 741-743, 750-752, 759-761, 769-771. At
his initial appointment, he reported constant left-sided hip
pain, worse with sitting evenly and lying in bed, that
sometimes traveled into his left thigh and calf. Tr. 604. He
was full weight bearing, ambulated without an assistive
device, was independent with self-care, independent with
activities of daily living, able to enter the facility taking
two steps with rails, and had taken the bus to therapy. Tr.
604, 605. His strength was grossly within functional limits
for gait and transfers and his sensation was intact to light
touch in his lower extremities. Tr. 605. Physical therapy
goals included decreasing pain, increasing walking tolerance
from 10 minutes to 30 minutes without an increase in symptoms
and improving his ability to lift an object from the floor.
Tr. 606. At follow-ups visits, his gait was independent
without an assistive device. Tr. 733, 742, 751, 760, 770.
August 23, 2013, Figueroa saw Thompson for a follow-up visit.
Tr. 701. Upon exam, he had mild paraspinal tenderness in his
lumbar region, bilateral hip tenderness, and decreased range
of motion. Tr. 701-701. He also had a normal gait, normal and
symmetric reflexes, and intact sensation. Tr. 702. On October
22, 2013, he returned to Thompson complaining that his hip
pain was getting worse after his hip injection. Tr. 779.
November 4, 2013, Figueroa saw orthopedic doctor Chad Fortun,
M.D., complaining of left hip and left radicular pain. Tr.
796. He reported a few days of relief following his hip
injection in August. Tr. 796. Upon exam, he had no
significant groin pain with log roll, a positive straight leg
raising test, an intact motor exam, and some subjective
paresthesia of his left foot. Tr. 796. Dr. Fortun wrote that
his exam was “very limited by pain” and ordered a
lumbar MRI and a referral for a spine consultation. Tr. 796.
On November 6, Figueroa saw Thompson for a follow-up visit
for abdominal pain; his gait was normal. Tr. 803.
lumbar MRI taken on November 14, 2013, showed disk
degeneration most marked at the L4-5 level, i.e., left L4-5
disk extrusion with marked resultant nerve root compression.
December 6, 2013, Figueroa saw Thompson for a follow-up visit
complaining of back pain. Tr. 811. He was ambulatory, denied
new numbness or weakness, and stated that he had begun
wearing a nerve stimulator that belonged to his
brother-in-law, which had been helping. Tr. 811. His
insurance had not approved pain patches and he requested
muscle relaxers and Motrin. Tr. 811. He had not followed up
on his spine consultation. Tr. 811. Upon examination, he had
diffuse paraspinal muscle spasms and a negative straight leg
raise test. Tr. 811. His muscular strength was intact and he
had no focal weakness appreciated. Tr. 812. He was started on
a Medrol dose pack, Robaxin and Neurontin; Thompson
recommended topical Voltaren Gel, given his inability to take
oral medication due to gastrointestinal problems,
contraindications with other medication he was on, and
insurance limitations, and noted that Figueroa would not
consent to using opioids due to his history of drug abuse.
December 16, 2013, Figueroa followed up with Antwon Morton,
D.O., with PM&R, complaining of left hip pain. Tr. 821. He
also reported low back pain that had begun in 1990 after an
L4-L5 disc herniation. Tr. 821. The pain was constant, of
varying intensity, and he had pain/numbness/tingling that
radiated into his left buttock and down to his left ankle.
Tr. 821. He reported stumbling frequently but that he had not
fallen. Tr. 821. He had pain when sitting on his left gluteal
area with increased paresthesia and difficulty using stairs.
Tr. 821. The pain was worse at night and he felt some relief
when lying on his back and rotating his legs to the right.
Tr. 821. Upon exam, he had 3 reflexes in the bilateral lower
extremities and normal sensation, except for decreased
sensation to light touch in his left L5 dermatone compared to
his right. Tr. 824. He had 5/5 strength in his lower right
extremity and 4/5 in the lower left. Tr. 824. His pelvis was
symmetric, his lumbar lordotic curvature was normal, and
there was no evidence of scoliosis, although he leaned to the
left when standing. Tr. 824. He had a mild decrease in
forward flexion with end of range pain and tenderness in his
lumbosacral paraspinal muscles bilaterally with no evidence
of a spasm. Tr. 824. He had an antalgic gait. Tr. 825.
Straight leg raising test was positive, but negative in the
seated position when distracted. Tr. 824. Dr. Morton assessed
Figueroa with bilateral femoral acetabular impingement
syndrome (radiographically right worse than left, but
clinically left worse than right), current left L5
radiculopathy, lumbar spondylosis, low back pain and antalgic
gait. Tr. 825. He increased Figueroa's dosage of
gabapentin, administered a Toradol injection for pain,
referred him for a left L5 epidural steroid injection for
radiculopathy and referred him for physical therapy for
mobility, ambulation, cane evaluation, hip stretching,
strengthening and range of motion. Tr. 825.
December 23, 2013, Figueroa reported to Thompson that he was
feeling much better with an increase of Gabapentin and
Robaxin and was content with his progress. Tr. 831. Upon
exam, he had minimal paraspinal tenderness in the lower
lumbar spine, intact muscular strength, and no focal
weakness. Tr. 832.
January 31, 2014, Figueroa followed up with Dr. Morton,
complaining that his pain was bad that day and was
“affecting his ‘whole lifestyle.'” Tr.
838. The last seven days his pain had been a 7-10/10. Tr.
838. He reported that his pain was most alleviated with a
TENS unit and that his Gabapentin and Robaxin have been
helping as well, but that he was out of his Robaxin. Tr. 838.
He was ambulating with a straight cane and had not been
performing his home exercises due to pain. Tr. 838. He
reported that he was evaluated by neurosurgery and offered
intervention but was recommended conservative treatment
first, and that he had not had his epidural steroid injection
and needed to reschedule his appointment. Tr. 838.
Examination findings were the same as his previous visit,
except that he had an antalgic gait. Tr. 841-842. Dr. Morton
administered another Toradol injection, rescheduled the
epidural injection, and referred Figueroa to physical
therapy, to be scheduled once his pain was under better
control. Tr. 842.
February 25, 2014, Figueroa underwent a left L5
transforaminal epidural steroid injection. Tr. 973. Following
treatment, he ambulated with a steady gait. Tr. 978.
March 12, 2014, Figueroa was evaluated for physical therapy.
Tr. 982-987. He reported constant low back pain, 10/10, and
left worse than right. Tr. 984. His pain was made worse with
prolonged sitting, prolonged standing, and prolonged walking,
lying down, sleeping at night, rising from a chair, lifting,
bending, and ascending/descending stairs. Tr. 984. His pain
improved with medication and rest. Tr. 984. Upon exam, he had
limited ranges of motion in his trunk, decreased muscle
strength (left worse than right), decreased sensation to
light touch in his left lower extremity, positive straight
leg raising and positive tenderness over his entire back. Tr.
984-985. Functional testing revealed a labored but
independent “sit to stand, ” assistance needed
with bed mobility and lifting an item from floor to waist,
and a slow, antalgic gait. Tr. 986. Other testing (e.g., hip
range of motion, joint mobility) was not assessed due to his
increased complaints of pain. Tr. 985-986. The physical
therapist concluded that treatment was inappropriate at that
time due to his increased pain with testing and recommended
Figueroa follow up with his referring physician. Tr. 986.
followed up with Dr. Morton on March 17, 2014. Tr. 991. He
reported that his steroid injection gave him 30 to 40% relief
for about one week. Tr. 991. He was ambulating with a
straight cane and complained of difficulty with putting on
shoes, dressing, lifting, and carrying. Tr. 991-992. His
examination findings were the same as his prior visit. Tr.
994. Dr. Morton administered another Toradol injection,
considered a re-referral for a repeat epidural steroid
injection, and recommended pool therapy. Tr. 995.
saw Thompson on March 31, 2014, complaining of low back and
left hip pain. Tr. 1221. He reported that his PM&R doctor was
contemplating surgery, that he was going to start pool
therapy, and that if pool therapy failed he was going to have
surgery. Tr. 1221. His electric stimulation therapy was
helping but he tried to use it only at night. Tr. 1221. Upon
examination, he had paraspinal muscle tenderness in his lower
lumbar region and left hip tenderness. Tr. 1221. He was
limping with his left leg and using a cane. Tr. 1221. He had
no tremor or focal weakness appreciated. Tr. 1222.
19, 2014, Figueroa followed up with Dr. Morton. Tr. 1226. He
reported that his left leg radiating symptoms had improved to
7/10 and he felt he was able to walk a little further
compared to his last visit. Tr. 1226. He had throbbing pain
in his left leg at night. Tr. 1226. He reported not having
worked for one year. Tr. 1226. He ambulated with a straight
cane when necessary but had not used it that day. Tr. 1227.
He was able to do home exercises and noted improvement in his
activities of daily living. Tr. 1227. His examination
findings were similar to his last visit on March 14: some
decreased sensation, slightly reduced strength in his left
leg, reduced range of lumbar and hip motion, lumbar
tenderness, antalgic gait, and a positive left straight left
raise test but a negative seated leg raise when distracted.
psychiatric appointment on June 27, 2014, Figueroa reported,
“My back is good. I've been doing stretches and
stuff.” Tr. 1012. His back was “a little sore
from work the other day”; he explained that he had been
working doing landscaping with his boss, but that it was hard
on him so he had not been doing it as much lately. Tr. 1012.
October 22, 2014, Figueroa saw Dr. Morton for left hip pain.
Tr. 1331. He had been doing well until the past Friday when
he was helping his mother move boxes. Tr. 1331. He reported
not having worked in one year. Tr. 1331. He was ambulating
with a straight cane as needed, was able to perform home
exercises, which “really seems to help with symptom
relief, ” and reported improvement with activities of
daily living. Tr. 1332. He was out of his Robaxin. Tr. 1332.
Examination findings were the same as his previous visit,
except that his antalgic gait had improved compared to his
last visit. Tr. 1336. Dr. Morton administered another Toradol
injection for pain and continued his medications. Tr. 1336.