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Secka v. Commissioner of Social Security

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

June 20, 2017

KEVIN SECKA, Plaintiff,


          Kathleen B. Burke, United States Magistrate Judge

         Plaintiff Kevin Secka (“Plaintiff” or “Secka”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying his application for social security disability benefits. 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 explained more fully below, the Court is unable to assess whether the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence because the ALJ's finding that Secka did “not have any neurological deficits” appears, in the absence of further explanation, to be contrary to the evidence of record. Accordingly, the Court REVERSES and REMANDS the Commissioner's decision for proceedings consistent with this Opinion.

         I. Procedural History

         Secka protectively filed[1] an application for Disability Insurance Benefits (“DIB”) on August 23, 2012.[2] Tr. 41, 119, 147, 255-256, 324. Secka alleged a disability onset date of June 1, 2010. Tr. 41, 119, 255, 324. Secka alleged disability due to disc degeneration, arthritis, nerve damage, depression, back injury, and high blood pressure. Tr. 119, 167, 177, 328. Secka's application was denied initially (Tr. 167-175) and upon reconsideration by the state agency (Tr. 177-183). Thereafter, he requested an administrative hearing. Tr. 184-185.

         On June 24, 2014, an administrative hearing was conducted by Administrative Law Judge John C. Lyons (“ALJ”). Tr. 61-89. On January 14, 2015, the ALJ issued his decision. Tr. 38-60. In his decision, the ALJ determined that Secka had not been under a disability within the meaning of the Social Security Act from June 1, 2010, through the date of the decision. Tr. 42, 53. Secka requested review of the ALJ's decision by the Appeals Council. Tr. 37. On May 2, 2016, the Appeals Council denied Secka's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6.

         II. Evidence

         A. Personal, vocational and educational evidence

         Secka was born in 1973. Tr. 255. He was 41 years old at the time of the hearing and lived in a house with his fiancé, his fiancé's adopted 2-year old son and 19 year-old daughter. Tr. 63-64. Also, Secka's fiancé's 22-year old son lived with them while he was not attending college. Tr. 63. Secka's minor daughter used to live with him but lived with her mother since 2013. Tr. 50, 63, 64. Secka graduated from high school and attended New Castle School of Trade in New Castle, PA, where he earned an Associate's Degree in Applied Sciences in Heating and Cooling in 2001. Tr. 329, 613. Secka last worked in 2010. Tr. 65.

         B. Medical evidence

         1. Treatment history

         Secka has a history of back pain dating back to at least 2005 when he underwent a bilateral L5-S1 lumbar microdiscectomy on November 22, 2005. Tr. 401-402, 409-410, 415-416, 425. Dr. Parviz Baghai, M.D., a neurosurgeon associated with Allegheny General Hospital performed the surgery. Tr. 409-410, 425. Following his surgery, Secka returned to work. Tr. 423.

         On October 23, 2006, Secka returned to see Dr. Baghai reporting he had been doing well up until three weeks prior. Tr. 423. Secka had experienced low back pain when he moved suddenly while in bed. Tr. 423. Following that, he was carrying a furnace and experienced an increase in his symptoms. Tr. 423. He was able to continue work until a week prior to his visit with Dr. Baghai when he fell at work. Tr. 423. Dr. Baghai's examination showed a positive straight leg raise at about 60 degrees bilaterally and some give-way weakness in both dorsiflexors. Tr. 423. Dr. Baghai diagnosed recurrent lumbar radiculopathy and ordered an EMG and MRI of the lumbar spine.[3] Tr. 423. On November 13, 2006, Secka saw his treating physician Michael T. Guffey, M.D., regarding his back pain. Tr. 458.

         Secka continued to see Dr. Guffey in 2006 and in 2007 with reports of back pain with the pain radiating down into his legs. Tr. 453-460. In March 2007, a lumbar spine MRI was performed. Tr. 472-473. Dr. Guffey indicated that the MRI showed a moderate bilateral foraminal stenosis and a mild spinal stenosis at the L5-S1 level, which is where Secka had his prior microdiscectomy. Tr. 454. Dr. Guffey noted that Secka might require further surgery and he referred Secka to Dr. Baghai for surgical evaluation. Tr. 454. Also, in early 2007, Secka saw Dr. Michael R. Cozza, M.D., for pain management at Beaver Valley Rehabilitation Associates. Tr. 439-442. Physical therapy was attempted without improvement. Tr. 441.

         In 2007, Secka filed applications for social security disability. Tr. 44, 90-92. However, Secka received some relief from injections and, on June 12, 2008, he notified social security that his condition had improved and he no longer wanted to pursue his social security disability application. Tr. 44, 71, 159.

         On June 1, 2010, Secka experienced an injury at work while lifting a bread machine. Tr. 574, 566. He experienced pain in his low back and up and down both legs. Tr. 574. Following his work injury, on August 3, 2010, Secka started pain management treatment. Tr. 489-492. He saw Dr. LoDico at Advanced Pain Medicine. Tr. 489-492. Secka reported pain across his entire low back with radiation into the lateral and posterior aspects of bilateral lower extremities. Tr. 489. He reported numbness, tingling, and burning sensation in the same areas. Tr. 489. Secka also reported weakness in his bilateral lower extremities but denied falling as a result of the weakness. Tr. 489. Secka reported little relief obtained through the use of pain medication, TENS unit, or physical therapy. Tr. 489. On physical examination, Dr. LoDico observed that Secka was able to sit and converse comfortably with no demonstration of overt pain behaviors; he rose from a seated position with the assistance of arms; his gait was nonantalgic; he walked with his lumbar spine slightly flexed forward due to pain; he was able to heel walk, toe walk, and squat with moderate difficulty secondary to pain; he had moderate tenderness to palpation in the midline and bilateral lumbar paraspinal muscles; lower extremity strength evaluation showed 5 out of 5 muscle strength in bilateral hip flexion, knee flexion/extension, ankle dorsiflexion/plantar flexion; he had decreased sensation to light touch in the lateral aspects of the right lower leg distal to the knee; he had decreased sensation to temperature in the lateral aspects of bilateral lower legs; straight leg raise was positive on the right and negative on the left; and there were no palpable cords, muscle spasms or true trigger points. Tr. 490. Dr. LoDico's assessment was “Lumbar spinal pain secondary to discogenic syndrome versus facet arthropathy, history of lumbar spine diskectomy in 2005[.] Lumbar extremity radicular syndrome. Significant pain relief after lumbar epidural steroid injections in the past.” Tr. 490-491. Dr. LoDico recommended lumbar epidural steroid injections as well as a lumbar MRI and possible EMG nerve conduction studies of the bilateral lower extremities. Tr. 491.

         Secka had injections administered on August 6 and August 20, 2010. Tr. 493-495, 496-498. On September 15, 2010, Secka reported that, since the two injections, he was nearly 100% improved. Tr. 499. Secka declined further injections at that time and Secka was advised to call to schedule another injection if his symptoms increased. Tr. 499. About two weeks later, on September 28, 2010, Secka reported that his lumbar spinal pain had increased significantly. Tr. 501. Secka was started on Hydrocodone, EMG nerve conduction studies of the bilateral lower extremities were scheduled, and a referral to a neurosurgeon was made for evaluation of possible surgical intervention. Tr. 501.

         EMG nerve conduction studies were performed on October 1, 2010, which showed bilateral L4 and right L5 radiculopathy without new or active denervation, bilateral tibial[4] motor mononeuropathy, bilateral sural[5] sensory mononeuropathy. Tr. 504, 510, 560-562. On October 7, 2010, Secka continued to report increased pain and indicated that the Hydrocodone was not helping. Tr. 504. Secka's October 7, 2010, physical examination was generally normal aside from his gait being slow, squatting with some discomfort, and rising from a seated position with the assistance of his arms. Tr. 504. Hydrocodone was discontinued and Secka was prescribed Opana, Lyrica, and Mobic. Tr. 505. On October 20, 2010, Secka reported increased pain in his back, with improvement noted with flexing forward. Tr. 507. Secka reported no side effects from the Opana but stated that it was not helping adequately with his pain. Tr. 507. He requested an increase in the dosage. Tr. 507. Physical examination revealed that Secka was uncomfortable but in no acute distress; he rose from a seated position slowly with the assistance of his arms and walked in a forward flexed position; his gait was slow and antalgic; he was tender over the bilateral lumbar paraspinal muscles, the right more than the left and over the lumbar area midline; there were no palpable cords or muscle spasms seen; muscle strength testing revealed 4 out of 5 strength in the bilateral quadriceps secondary to pain and 5 out of 5 strength in the balance of his bilateral lower extremities; straight leg raises were negative bilaterally. Tr. 507. Secka's Opana was increased from 5 mg to 7.5 mg. Tr. 507. A new Lyrica prescription was provided because Secka indicated he could not fill the prior prescription because there was no diagnosis included with the initial prescription. Tr. 507. Also, Secka was prescribed a Medrol dose pack to be taken for exacerbation of pain. Tr. 507.

         Secka saw Dr. Baghai on October 29, 2010. Tr. 566, 571-576. Dr. Baghai observed that Secka had tried physical therapy without relief; injections helped for about a week; Lyrica was helping but Secka's back pain was still significant; and the steroid dose pack was not helping. Tr. 566. Dr. Baghai's physical examination showed positive straight leg raise at about 60 degrees bilaterally with pain in the back and legs. Tr. 566. A neurological examination showed no focal deficits. Tr. 566. Dr. Baghai reviewed a lumbar MRI, noting that it showed evidence of postoperative changes at ¶ 5-S1. Tr. 566. Dr. Baghai recommended that Secka continue with conservative treatment, indicating that he believed that the majority of Secka's symptoms were the “result of stressor during the incident of June 1, 2010.” Tr. 566.

         Secka continued treatment at Advanced Pain Medicine in November and December 2010 with continued reports of pain. Tr. 510-515. Secka indicated that Opana at 10 mg was not helping. Tr. 514. His dosage was increased to 15 mg on December 8, 2010. Tr. 514. Lumbar facet nerve blocks, lumbar facet rhizotomy and a lumbar diskopgraphy were discussed as possible future procedures. Tr. 511, 514.

         On January 7, 2011, Secka had bilateral lumbar facet nerve blocks. Tr. 516-518. On January 11, 2011, Secka had a left lumbar facet rhizotomy. Tr. 519-522. Secka reported some improvement from the procedures. Tr. 519 (80% relief for rest of the day from nerve block); Tr. 523 (less left lower extremity pain following the lumbar rhizotomy but increased cramping pain and pressure on the left side and back).

         During his January 17, 2011, visit at Advanced Pain Medicine, Secka reported that Opana was not helping so he stopped taking after two weeks. Tr. 523. Also, while Lyrica was helping his lower extremity pain, he discontinued because it was causing forgetfulness. Tr. 523. On examination, Secka's gait was antalgic, favoring the left lower extremity; and he was tender to palpation of the lumbar paraspinal muscles bilaterally. Tr. 523. Dr. LoDico recommended a right lumbar facet rhizotomy and that Secka restart Lyrica. Tr. 523. A week later, Secka reported that his pain had worsened. Tr. 526. Dr. LoDico started Secka on MS Contin, continued Secka on Lyrica, suggested Tylenol, and indicated that, once Secka's pain settled, a right lumbar facet rhizotomy should be considered. Tr. 526. At a February 10, 2011, follow-up visit, Secka reported that the MS Contin was not working and caused vomiting. Tr. 529. He was not taking Tylenol as suggested. Tr. 529. He was using Aleve. Tr. 529. On physical examination, Secka appeared uncomfortable at times; he rose from a seated position slowly with assistance of his arms; and his gait was slow but not antalgic. Tr. 529. Otherwise, his physical examination was unremarkable. Tr. 529.

         On February 28, 2011, Secka had a right lumbar facet rhizotomy. Tr. 536. Following the procedure, on March 10, 2011, Secka reported a significant decrease in his lower extremity pain but was not sure whether it was attributed to the rhizotomy procedure or changes in his medication. Tr. 536. He was still having pain across his back and dorsal aspect of his feet as well as intermittent mild pain in the lateral thigh. Tr. 536. Physical examination findings were generally normal. Tr. 536.

         Secka continued pain management treatment at Advanced Pain Medicine through September 2011, receiving lumbar epidural injections on June 21, August 2, and August 22, 2011. Tr. 539-559. During a September 6, 2011, visit at Advanced Pain Medicine, it was noted that Secka received some relief from the series of injections. Tr. 557. The first injection helped for about a week but the back pain returned after Secka's left leg fell through the floor at his cabin. Tr. 548, 557. The second and third injections helped with lower extremity pain but his pain was not completely relieved. Tr. 557. Secka reported that a worker's compensation doctor opined that Secka could return to full duty work. Tr. 557. Secka reported a new pain in his groin and going into his bilateral lower extremities that he described as quick and intermittent - sharp and burning like being electrocuted. Tr. 557. Secka's physical examination was generally normal. Tr. 557. Dr. Plowey of Advanced Pain Medicine recommended a lumbar diskography. Tr. 557. Dr. Plowey noted that Secka last worked in a job requiring significant lifting, bending, twisting and prolonged standing and it was unlikely that Secka could return to that type of work at the time, stating that “we will have him remain off of full duty at this time. He is restricted to sit, stand and walk ad lib. with no lifting greater than 10 pounds.” Tr. 557.

         On October 10, 2011, Secka returned to see Dr. Baghai. Tr. 565. Secka reported that his symptoms had been increasing over the prior year and Dr. Baghai indicated that an examination showed “straight leg raising is positive on the left at about 60 degrees. The remainder of his exam does not show any focal neurological deficit.” Tr. 565. Dr. Baghai recommended a lumbar MRI and EMG and nerve conduction testing of both legs. Tr. 565.

         A lumbar MRI was taken on October 12, 2011. Tr. 567. No significant changes were seen from the prior June 2010 MRI. Tr. 567. There continued to be a mild diffuse bulge at ¶ 5-S1 but no significant central canal narrowing was seen; mild bilateral neural foraminal and narrowing and lateral recess narrowing was unchanged. Tr. 567. EMG nerve conduction studies of the lower extremities were performed on October 17, 2011. Tr. 568-570. Physical examination of the lower extremities showed hypoactive deep tendon reflexes; sensation appeared preserved to pinprick, light touch and vibration sense with some patchy alteration noted on both feet; pedal pulses were palpable; and no footdrop phenomenon was noted. Tr. 600. The nerve conduction studies were abnormal, with the following findings noted:

Axonal impairment noted in the right tibial nerve, on the EMG studies diffuse chronic partial denervation changes were seen in multiple myotomes. The abnormalities noted are most consistent with a chronic lumbosacral polyradiculopathy, no abnormalities suggestive of a recurrent acute lumbosacral radiculopathy was noted.

Tr. 568, 600.

         Dr. Baghai saw Secka on October 24, 2011. Tr. 564. Secka reported continued left leg numbness that was sharp, aching, stabbing, burning and tingling. Tr. 564. Dr. Baghai reviewed the MRI and EMG and nerve conduction study results and recommended a spinal cord stimulator and further evaluation. Tr. 564.

         Secka left Advanced Pain Medicine due to a change in his insurance (Tr. 643), and, beginning in April 2012, he started pain management treatment at Allied Pain Treatment Center and continued with treatment there through 2013 (Tr. 587-595, 603-611, 623-642). In January 2014, Secka resumed treatment at Advanced Pain Medicine and continued treatment there through at least April 2014. Tr. 643-664.

         During his April 17, 2012, office visit at Allied Pain Treatment Centers with Dr. Thomas Ranieri, M.D., physical examination findings included decreased range of motion; pain on flexion, extension, rotation, side bend; positive straight leg testing; positive Patrick's testing for back; positive heel walk and toe walk; no motor or sensory deficits. Tr. 587. Dr. Ranieri assessed post op lumbar laminectomy, lumbar spondylosis, lumbar facet syndrome, and noted a re-injury in June 2011 that was not worker's compensation. Tr. 587.

         Secka returned to see Dr. Ranieri a month later on May 15, 2012, with continued reports of low back pain into his legs. Tr. 588. Dr. Ranieri's physical examination findings included decreased range of motion in the lumbar spine; pain on flexion, extension, rotation and side bend; decreased strength; positive straight leg testing bilaterally, left greater than the right; positive Patrick's testing for back pain; inability to heel walk and toe walk; antalgic gait; decreased sensation in L5-S1 distribution in legs and median nerve distribution in hands; no motor or sensory deficits. Tr. 588. Dr. Ranieri assessed neuropathic pain of the lumbar spine area; lumbar spine neuritis; post op lumbar laminectomy 2005; median neuropathy; lumbar spondylosis; lumbar facet syndrome; and noted a re-injury in June 2011 that was not worker's compensation. Tr. 588.

         On June 13, 2012, spinal mapping of Secka's left side of the lumbar spine was negative for pain at the L3 area but positive at the L4 and L5 areas. Tr. 590. In July 2012, Secka saw Dr. Secka and reported having fallen in a rabbit hole a couple weeks earlier. Tr. 603. On physical examination, Secka continued to exhibit decreased lumbar spine range of motion, positive Patrick's testing and positive straight leg testing. Tr. 603. On August 21, 2012, Secka saw Dr. Ranieri reporting that he had fallen into a hole that his dog dug out[6] and both of his legs were hurting him. Tr. 605. Dr. Ranieri's physical examination findings included decreased range of motion, positive straight leg testing, positive Patrick's testing for back pain, and positive heel walk and toe walk. Tr. 605. Dr. Ranieri noted that Secka had had good results from lumbar epidural steroid injections in the past and indicated that injections would be set during a subsequent visit. Tr. 606. On October 17 and November 14, 2012, Secka received lumbar epidural steroid injections. Tr. 610, 623-624, 625-626. On December 14, 2012, Secka saw Dr. Ranieri reporting that the injections did not help. Tr. 627.

         In January 2013, Secka reported falling when his dog got under his feet. Tr. 629. Dr. Ranieri's physical examination findings included decreased range of motion, positive straight leg testing, positive Patrick's testing for back pain, and positive heel walk and toe walk. Tr. 605. On March 5, 2013, Secka saw Dr. Ranieri for his low back pain. Tr. 631-634. Physical examination findings were generally normal with tenderness in the ...

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