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Fairley v. Commissioner of Social Security Administration

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

April 3, 2017

LLOYD FAIRLEY, JR., Plaintiff,


          Kathleen B. Burke United States Magistrate Judge

         Plaintiff Lloyd Fairley, Jr. (“Fairley”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) and 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. 15.

         As set forth more fully below, the Administrative Law Judge (“ALJ”) failed to explain what he meant when he included a limitation in his residual functional capacity assessment that Fairley “must be able to change position in his seat as needed for comfort” and testimony from the Vocational Expert does not shed light on this limitation. Thus, the Court cannot ascertain whether this limitation is in conflict with the Dictionary of Occupational Titles and would warrant further investigation by the ALJ. Accordingly, the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion.

         I. Procedural History

         Fairley filed applications for DIB and SSI on February 6, 2013, alleging a disability onset date of March 5, 2012. Tr. 12, 182, 212. He alleged disability based on the following: post- traumatic stress disorder, depression, bipolar disorder, schizophrenia, diabetes, disc herniation L3-L5, high blood pressure, supraventricular tachycardia, complex medial meniscus tear in left knee, and left hip contusion and sprain. Tr. 228. After denials by the state agency initially (Tr. 101-102) and on reconsideration (Tr. 129-130), Fairley requested an administrative hearing. Tr. 156. A hearing was held before Administrative Law Judge (“ALJ”) Frederick Andreas on January 29, 2015. Tr. 40-76. In his April 17, 2015, decision (Tr. 12-35), the ALJ determined that there are jobs that exist in significant numbers in the national economy that Fairley can perform, i.e., he is not disabled. Tr. 34. Fairley requested review of the ALJ's decision by the Appeals Council (Tr. 7) and, on March 9, 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

         Fairley was born in 1966 and was 46 years old on the date his applications were filed. Tr. 34, 212. He graduated from high school. Tr. 229. He previously worked in a steel mill as a vacuum operator and at a paper factory as a wrapper. Tr. 69-72. He last worked in 2012. Tr. 48.

         B. Relevant Medical Evidence [1]

         In April 2010, Fairley saw chiropractor Brian C. Studer, D.C., after a car accident. Tr. 297-304. Fairley complained of headaches, neck pain, back pain, shoulder pain, and left wrist pain. Tr. 298. He improved with treatment but continued to have intermittent muscle spasms/guarding within his bilateral lumbar region. Tr. 303.

         A treatment note from March 2011 states that Fairley's type 2 diabetes was under extremely poor control, which, Fairley admitted, was because of poor dietary restrictions: ingesting soda pop, a lot of candy, and chocolate. Tr. 328. Treatment notes in May and July 2011 show that he was not doing appropriate blood sugar monitoring. Tr. 326, 324.

         On March 5, 2012, Fairley went to the Mercy Regional Medical Center after he fell through a grating at work, hitting his left leg and hip on a steel bar. Tr. 361. X-rays were unremarkable and Fairley was diagnosed with left hip and knee strain/contusion and lumbar strain/sciatica. Tr. 362. The next day, he saw Dr. Studer, who found, among other things, left-sided trapezius spasms. Tr. 374. Fairley was using a cane to walk. Tr. 374.

         On April 2, 2012, Fairley underwent an independent evaluation with Dr. Paul Martin, M.D., complaining of bilateral knee pain, bilateral upper extremity numbness and tingling, left low back and hip pain and spasm, and “some neck problems.” Tr. 378-379. Upon exam, he had an antalgic gait to the left and carried a cane. Tr. 379. He had significantly limited left hip range of motion based on his reports of pain, but no evidence of soft tissue swelling. Tr. 379. His low back was moderately tender to palpation on the left side and he had a fairly limited lumbar spine range of motion due to reported pain, but no evidence of muscle spasm and a normal lumbar lordosis. Tr. 379. He had low back pain upon slight dorsiflexion of his ankle and great toe while supine and increased low back pain with hip range of motion and head compression. Tr. 379. He had intact motor function and normal sensation and deep tendon reflexes in his bilateral lower extremities. Tr. 380. He complained of significant left knee pain in a fairly diffuse pattern. Tr. 380. Dr. Martin answered all the questions submitted to him in the form with respect to Fairley's back, hip and knee impairments; based on these, Dr. Martin opined that Fairley was unable to return to work without a restriction and had not reached medical maximum improvement at that time. Tr. 380-381.

         On May 1, 2012, Fairley saw Satish Mahna, M.D., complaining of back and leg pain as well as intermittent neck pain and intermittent tingling, numbness and weakness in his left hand. Tr. 408. He was using a cane in his left hand to ambulate. Tr. 408. Upon exam, he had tenderness in his left and posterior trapezial muscle with spasms, no focal trigger points, and “some” restricted range of motion in his cervical spine. Tr. 408. His upper extremities were unremarkable except for complaints of tightness in his trapezial areas with overhead reaching and a positive Phalen sign, left greater than right.[2] Tr. 408. His upper extremities had normal neurological findings: no muscle atrophy or motor or sensory deficits. Tr. 409. Dr. Mahna diagnosed Fairley with a sprain/strain in his back and left hip and knee, and “believe[d]” that, “considering the mechanics of [Fairley's] injury, ” he suffered a cervical strain/sprain. Tr. 409. Dr. Mahna recommended MRIs of Fairley's lumbar spine and left knee as well as trigger point injections in his lumbar paraspinal muscles and prescribed Percocet. Tr. 409.

         On October 4, 2012, Fairley underwent an independent medical evaluation with Dr. Ira Ungar, M.D. Tr. 410-417. Among his chief complaints of back, left hip and left knee pain, Fairley also complained that his hands go numb. Tr. 411. Upon examination of Fairley's lumbar spine, Dr. Ungar commented that Fairley made exaggerated complaints of discomfort at extreme ranges of motion. Tr. 413. Fairley exhibited exaggerated pain behavior “and 6 out of 7 Wadell signs for somatic amplification are positive suggesting significant symptom magnification.” Tr. 413. An examination of his cervical spine showed no atrophy, spasm, or dissymmetry. Tr. 414. His head posture was normal and his motion was smoothly coordinated. Tr. 414. He had minor discomfort upon palpation of his paracervial muscles but no evidence of “tender or trigger points.” Tr. 414. Manual muscle testing of his upper extremities showed no weakness or evidence of atrophy bilaterally. Tr. 414. His grip strength was strong and equal bilaterally and distal sensation was intact over all dermatomes. Tr. 414. Dr. Ungar found no evidence of cervical myelopathic deficits by numbness, weakness or Hoffman's tests. Tr. 414. Fairley's deep tendon reflexes in his biceps, triceps and brachioradialis were symmetric bilaterally. Tr. 414. Dr. Ungar answered all the questions submitted to him in the form with respect to Fairley's back, hip, knee and neck impairments; based on these, Dr. Ungar opined that Fairley was able to return to work without restrictions and had reached medical maximum improvement at that time. Tr. 416.

         On December 26, 2012, Fairley saw Dr. Mahna and had tenderness and spasm in his posterior and left trapezial muscle and “some” restricted range of motion in his cervical spine; he carried a cane in his left hand for ambulating; and had a normal neurological examination of his upper extremities. Tr. 388.

         On March 26, 2013, Fairley reported that his pain had gotten worse, 10/10, and Dr. Mahna prescribed Neurontin. Tr. 529-531. His physical examinations remained unchanged. Tr. 530.

         On April 16, 2013, Fairley complained to Dr. Mahna of “pressure type neck pain” without radiation into his upper extremities and intermittent tingling, numbness and weakness in both hands, left worse than right. Tr. 532. The neurological exam findings of his upper extremities were normal. Tr. 533. Fairley reported that he had stopped taking Neurontin about two weeks prior because of side effects. Tr. 534.

         On September 25, 2013, Fairley underwent arthroscopic surgery of his left knee with a partial medial meniscectomy. Tr. 620. In a follow-up visit a month later, he had full motion and his preoperative pain was gone. Tr. 619.

         On October 8, 2013, Fairley had an EMG study based on his complaints of numbness in his hands and his history of diabetes mellitus type 2. Tr. 616. The study showed mild bilateral median nerve compression neuropathy at the wrists consistent with a diagnosis of mild bilateral carpal tunnel syndrome, slightly worse on the left side. Tr. 616. The reviewer also stated that Fairley's history of diabetes was resulting in developing changes of early peripheral neuropathy. Tr. 616.

         Fairley continued to see Dr. Mahna, who continued to report the same findings as in previous visits; i.e., neck “essentially unremarkable, ” with tenderness and spasm in his left and posterior trapezial muscle and some restriction of range of motion in his cervical spine; he carried a cane in his left hand for ambulating; and he had a normal neurological examination of his upper extremities. Tr. 693, 696, 699, 702, 705, 708. Fairley started back on Neurontin. Tr. 700.

         On October 10, 2014, Fairley went to the emergency room complaining of pain in his knees, low back and neck for the last week. Tr. 599. Upon exam, he had a supple and non-tender neck with full range of motion. Tr. 599. He had a normal gait. Tr. 601. He had normal muscle strength and tone, normal digits, and full range of motion and no tenderness in his upper extremities. Tr. 601. He had tenderness in his bilateral lumbar paraspinal muscles. Tr. 601. He was diagnosed with chronic back pain and diabetic neuropathy, was given prescriptions (Percocet and Naprosyn), and discharged home. Tr. 601, 603.

         C. Opinion Evidence

         1. Physical therapist's functional capacity evaluation

         On February 6, 2015, Fairley underwent a functional capacity evaluation with a physical therapist.[3] Tr. 719-722. His past medical problems were listed as hypertension, heart problems, diabetes, and neck, back, hip and knee problems. Tr. 719. Upon exam, his trunk flexion was 50% of normal, his extension was 25% of normal, and his bilateral side bend was 50% of normal. Tr. 719. His upper extremity strength was decreased, 4/5, and his shoulder range of motion was decreased. 720. The range of motion in his elbows, forearms, wrists and hands was normal. Tr. 720. His grip and pinch testing was significantly below normal; the evaluator wrote, “Mr. Fairley did not demonstrate maximum effort with grip and pinch testing.” Tr. 720. He displayed poor body mechanics with the lifting tasks. Tr. 721. The evaluator opined that Fairley had decreased grip and pinch strength, decreased fine finger manipulation, and decreased gross motor coordination. Tr. 722. The evaluator stated that Fairley could perform sedentary work with ...

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