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Figueroa v. Commissioner of Social Security Administration

United States District Court, N.D. Ohio, Eastern Division

March 16, 2017

MIGUEL FIGUEROA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION & ORDER

          KATHLEEN B. BURKE MAGISTRATE JUDGE

         Plaintiff 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.

         As set 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.

         I. Procedural History

         Figueroa 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.[1] 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.

         II. Evidence

         A. Personal and Vocational Evidence

         Figueroa 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.

         B. Relevant Medical Evidence[2]

         In 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.

         On 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.

         On May 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.

         On May 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.

         On May 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.” Tr. 382.

         On June 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.[3] Tr. 365. He had a normal gait, normal and symmetric reflexes, and grossly intact sensation. Tr. 365. Thompson referred Figueroa to orthopedics. Tr. 365.

         On June 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.

         On July 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.

         Figueroa 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. 576.

         On July 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.[4] 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.

         On August 14, 2013, Figueroa received a left hip injection. Tr. 596-597.

         Figueroa 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.

         On 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.

         On 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.

         A 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. Tr. 800.

         On 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. Tr. 812.

         On 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.

         On 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.

         On 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.

         On February 25, 2014, Figueroa underwent a left L5 transforaminal epidural steroid injection. Tr. 973. Following treatment, he ambulated with a steady gait. Tr. 978.

         On 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.

         Figueroa 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.

         Figueroa 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.

         On May 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. Tr. 1230.

         At a 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.

         On 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.

         C. Medical ...


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