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Huminski v. Commissioner of Social Security

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

December 6, 2017





         I. Introduction

         Plaintiff, David John Huminski, seeks judicial review of the final decision of the Commissioner of Social Security denying his application for supplemental security income under Title XVI of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because the ALJ did not correctly apply the applicable legal standards, I recommend that the court should VACATE and REMAND the final decision of the Commissioner for further proceedings.

         II. Procedural History

         On February 18, 2014, Huminski filed applications for disability insurance benefits and supplemental security income alleging disability beginning January 28, 2014. (Tr. 94) The claim was denied initially on April 23, 2014. (Tr. 94-124) Huminski requested a hearing on May 8, 2014. (Tr. 127) Administrative Law Judge (“ALJ”) Susan Smoot heard the case on January 27, 2016. (Tr. 36-87) The ALJ found Huminski not disabled in a February 23, 2016 decision. (Tr. 16-30) The Appeals Council denied Huminski's request for review, rendering the ALJ's decision final. (Tr. 1-4) Huminski instituted this action to challenge the Commissioner's final decision.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Huminski was born on August 31, 1959 and was 56 years old at the time of the hearing. (Tr. 41) He lived alone in a small, one-story house. (Tr. 42) Huminski completed high school and had past work experience as a driver and a dispatcher. (Tr. 83)

         B. Relevant Medical Evidence [1]

         Between November 10, 2014 and February 2015, Huminski sought chiropractic treatment from Dr. Geoff Besso and Dr. Lynn Olszewski. (Tr. 452-456, 468-469, 461-471) Huminski complained of left leg, low back and knee pain; sharp and stabbing pain when rising from a seated position; and periodic flare-ups of trigeminal neuralgia. At initial appointments, Huminski described his pain as constant and moderate but he reduced this rating to mild at later appointments. (Tr. 464, 457) Observations from physical examinations included a shorter left leg, high left shoulder, high right pelvis, right neck tilt, grade one to two hypertonicity in the right and left cervical spine, grade two muscle spasm with left superior medial and medial scapular palpation, and grade one to two hypertonicity in the right and left lumbar spine. (Tr. 456-465, 468-469) Drs. Besso and Olszewski noted that Huminski was improving. (Tr. 452-453) Huminski continued to complain of left leg, low back and knee pain but he described it as mild; he reported less sharp pain when he changed from a seated to standing position. (Tr. 452-456)

         On February 26, 2015, Huminski was evaluated for physical therapy. He reported pain in his left anterior hip and thigh with some numbness. (Tr. 560-562) The physical therapist, Chris Miloscia, observed pain with resisted hip flexion on the left and a mild decrease in internal rotation and flexion, both of which produced left groin pain. (Tr. 561) The therapist recommended that plaintiff attend rehabilitative therapy for four weeks, two times per week. (Tr. 562) The discharge summary for physical therapy dated April 22, 2015 stated that Huminski had done very well after his last visit but did not return for his final visit. (Tr. 549-550)

         At an appointment with nurse practitioner, Maureen Vantine, on March 13, 2015, Huminski complained of worsening lower back pain with radiation down his left leg to his knee, aggravation of his pain when changing positions, numbness and tingling in the left leg, weakness in his left leg and problems sleeping. (Tr. 555-558) Nurse Vantine noted that recent imaging from the chiropractor's office showed degenerative disc disease of the lumbar spine and bone spurs in the cervical spine. (Tr. 555) Nurse Vantine observed tenderness of the lumbar spine and left paraspinal muscles and obesity, but Huminski had normal strength bilaterally and negative straight leg raise test. (Tr. 556) Finally, Nurse Vantine made assessments of: degeneration of lumbar or lumbosacral intervertebral discs, dietary surveillance and counseling, exercise counseling, and obesity. (Tr. 556)

         Huminski saw a family physician, Ramandeep Dhillon-Gill, D.O., on June 25, 2015. (Tr. 543-545) Huminski reported weakness and pain in his left leg. He told Dr. Dhillon-Gill that he had a laminectomy in 1995 and that physical therapy had been ineffective. (Tr. 543) During examination, Dr. Dhillon-Gill observed that Huminski had weakness in his left leg and was unable to walk on his left toe. (Tr. 543) Dr. Dhillon-Gill diagnosed degeneration of lumbar or lumbosacral intervertebral discs, tobacco dependence, sciatica and chronic obstructive pulmonary disease. This physician prescribed Cyclobenzaprine, a muscle relaxant, and referred Huminski for spirometry and to an orthopedic surgeon. (Tr. 544)

         At a follow-up appointment on July 21, 2015, Huminski reported that he was taking Flexeril only when he was in severe pain. The past week he had taken it twice. Dr. Dhillon-Gill noted that spirometry indicated normal lung function. (Tr. 541-542) Later that month, Huminski saw another physician in the same practice, Vikil Girdhar, M.D. and reported back pain radiating down his left leg. (Tr. 537-540) Dr. Girdhar's examination findings were normal with the exception of mild left paraspinal tenderness and diminished range of motion in back. Dr. Girdhar also noted Huminski needed to change positions for comfort. (Tr. 537-538) Dr. Girdhar diagnosed an upper respiratory infection, tobacco dependence, back pain, and other malaise and fatigue. (Tr. 538) In two subsequent appointments with Dr. Girdhar that Fall, Huminski did not complain of any musculoskeletal pain. (Tr. 524-525, 535-536) He did complain of left hip pain at an appointment on November 16, 2015. (Tr. 563-564)

         On August 13, 2015, Huminski attended an initial appointment with Dr. Carrie A. Diulus, an orthopedic surgeon. (Tr. 497-514) Huminski reported intermittent leg pain, with a sharp stabbing pain from his groin to anterior knee; aggravation of his symptoms with driving, sitting, changing positions, and lifting; numbness in the entire left leg; low back pain, status post-surgery; limitations in his ability to walk/stand; weakness in his legs; trouble urinating; and mood changes. (Tr. 506-507) Physical examination showed limited range of motion in Huminski's lumbar spine and left hip, but no difficulty with ambulation, full range of motion in the cervical spine, full motor strength, normal sensation, negative straight leg raise tests, and no difficult with coordination. (Tr. 508-509) X-rays of the lumbar spine showed bilateral hip arthritis, loss of disc space height bilaterally at two levels, mild facet arthritis, and no instability. (Tr. 515) Dr. Diulus assessed Huminski's left hip pain as severe and discussed surgical and nonsurgical options with him. (Tr. 510) She noted that Huminski was morbidly obese and would need to lower his body mass index to be a hip replacement surgery candidate. (Tr. 510)

         In early September 2015, Huminski returned to Dr. Diulus for a left hip arthrogram, aspiration, and steroid injection. (Tr. 485-486) Fluoroscopic imaging of the left hip during this procedure demonstrated a small amount of contrast within the joint and degenerative changes of the hip.

         Two weeks after his injection, on September 17, 2015, Huminski completed a questionnaire for the Spine Wellness Center. (Tr. 475-476) He indicated that he had 70% improvement after the injection. (Tr. 475) He marked circles indicating that: the pain comes and goes and is very severe; he had pain in bed but it did not prevent him from sleeping well; pain prevented him from sitting more than ½ hour; he could stand without pain; he had some pain while walking but it didn't increase with distance; he did not normally change his way of washing or dressing even though it caused some pain; he could lift heavy weights without extra pain; he got extra pain while traveling but it did not cause him to seek alternate forms of travel; pain had no significant effect on his social life apart from limiting more energetic interests (e.g. dancing); and that his pain was rapidly getting better. (Tr. 476)

         On September 17, 2015, Dr. Diulus observed that Huminski was ambulating without difficulty and that he was “doing great” with regard to his hip. She noted that he could have another injection in three months. Huminski complained of left leg pain with occasional stabbing pain along the anterior medial aspect of his thigh. (Tr. 480) Dr. Diulus assessed trigeminal neuralgia; lumbosacral spondylosis without myelopathy; tobacco use disorder; morbid obesity; and osteoarthritis localized primary involving pelvic region and thigh. She discussed with him that he may ultimately need a hip replacement. (Tr. 482) On January 5, 2016 Huminski underwent a second left hip arthrogram with aspiration and fluoroscopically-guided injection performed by Dr. Diulus. (Tr. 630-632)

         C. Testimonial Evidence

         1. Huminski's Testimony

         • Huminski was born on August 31, 1959. He is 5' 11” and weighed 290 pounds. (Tr. 41)

         • Huminski lived alone. (Tr. 42)

         • He had a driver's license and was able to drive. (Tr. 42) He didn't drive long distances though; he felt he would be able to drive 45 minutes before stopping. (Tr. 43)

         • Huminski completed high school and one year of college. (Tr. 43) He also went to truck driving school and was licensed as a trucker in 1995. He worked on and off as a truck driver for ten years. (Tr. 44)

         • Huminski worked in numerous jobs involving driving and delivering. He worked as a truck driver requiring him to lift up to 120 pounds. (Tr. 47) He worked as a delivery driver for various companies. (Tr. 48-49, 52) When delivering to liquor stores, he was required to lift about 50 pounds repetitively. (Tr. 49) He also drove a concrete mixer for a few years. (Tr. 50)

         • Huminski also worked as a dispatcher for a company that transported people to doctor's appointments (Tr. 53-54) and as a press operator through a temp agency. (Tr. 56-60)

         • Huminski felt that he could no longer work due to pain in his hip, back, and knee and manic depression. (Tr. 60)

         • Huminski's back pain began in 1994. He had a laminectomy at ¶ 3-4 and L4-5 in 2004. After that he was able to work full time for many years. (Tr. 62)

         • His back pain became unbearable toward the end of 2015. (Tr. 62) His lower back pain was associated with pain in his left hip. (Tr. 64) He received injections to help with pain and took medications. (Tr. 65) His pain worsened when he went from a sitting to a standing position. (Tr. 65) Huminski thought that he would eventually undergo hip surgery. (Tr. 67)

         • Huminski took Seroquel and was able to sleep eight hours most nights. Sometimes he woke up with pain and could not go back to sleep. (Tr. 66)

         • Huminski also suffered from trigeminal neuralgia that caused severe pain in his head. He ...

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