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Black v. Commissioner of Social Security

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

May 31, 2018

JOSETO BLACK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JAMES R. KNEPP II UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff Joseto Black (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny supplemental security income (“SSI”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). Following their briefing, the parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. See Docs. 26-27. Following review, and for the reasons stated below, the undersigned affirms the decision of the Commissioner.

         PROCEDURAL BACKGROUND

         Plaintiff protectively filed for SSI in December 2010, alleging a disability onset date of September 20, 2010. (Tr. 56, 205-10). His claims were denied initially and upon reconsideration. (Tr. 102, 115). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 122). An ALJ held a hearing on October 15, 2012. See Tr. 73. On December 17, 2012, the ALJ found Plaintiff not disabled in a written decision. (Tr. 73-79). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 84-90); see 20 C.F.R. §§ 416.1455, 416.1481. Plaintiff timely filed the instant action on April 1, 2014. (Doc. 1).

         In June 2014, the Commissioner moved to remand the case pursuant to sentence six of 42 U.S.C. § 405(g) due to an inaudible recording of the hearing. (Doc. 11). Plaintiff did not oppose the remand at a phone conference ((Non-document entry dated June 18, 2014). The district court granted the remand (Docs. 14-15); see also Tr. 91 (amended judgment entry ordering remand)

         Pursuant to the remand order, the Appeals Council remanded the case to the ALJ for an additional hearing. (Tr. 97-100). In its remand order, the Appeals Council noted Plaintiff subsequently filed an application for SSI, which was approved as of February 20, 2014. (Tr. 99). The Appeals Council affirmed that determination, but remanded the decision to the ALJ to adjudicate the period prior to February 20, 2014. Id.

         On April 14, 2015, the ALJ held a new hearing, at which Plaintiff (represented by counsel), and a vocational expert (“VE”) testified. (Tr. 27-45). On May 11, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 7-23). The Appeals Council declined jurisdiction, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3). The Commissioner then filed a motion to reinstate the case (Doc. 16), which the district court granted (Doc. 17).

         FACTUAL BACKGROUND

         Personal Background

         Plaintiff was born in March 1959, making him 51 years old on his alleged disability onset date. See Tr. 205. He had a high school education, and past work experience as a laborer. (Tr. 275).

         Relevant Medical Evidence[1]

         In August 2010, Plaintiff sought care after injuring his back while lifting boxes at work. (Tr. 404). The following month, he followed up with Billy Brown, M.D. (Tr. 399-401). On examination, Dr. Brown noted “mild pain to palpation in the LS spine midline” and a normal spine range of motion, but shuffling gate. (Tr. 400-01). He also noted muscular weakness in his left leg with mild left foot drop, unsteady gait, and a sensory deficit in Plaintiff's left leg with an absent left knee jerk. Id. He assessed lumbago and sciatica, and recommended bedrest, non-steroidal anti-inflammatory medication (“NSAIDs”), and a muscle relaxant. (Tr. 401). He ordered an MRI. (Tr. 401).

         The MRI revealed lower lumbar spondylosis with canal, lateral recess, and foraminal stenosis. (Tr. 382). Specifically, it showed mild disk bulging at ¶ 3-L4 and L4-L5; mild L3-L4 and moderate L4-L5 canal stenosis; mild lateral recess stenosis at ¶ 3-L4 and moderate to severe at ¶ 4-L5; and mild annular bulging and moderate facet hypertrophic change at ¶ 5-S1. Id.

         Later in September 2010, Plaintiff saw Bridget C. Mansell, PA-C, to follow up on his back pain. (Tr. 393-96). Plaintiff reported back pain, and numbness and tingling in his left foot. (Tr. 393). He reported relief from “sitting to the right” and having his left knee bent. Id. He also reported being unable to fill the prescriptions from Dr. Brown due to financial reasons. Id. On examination Ms. Mansell noted normal gait, and normal muscle strength except decreased strength (4/5) with plantar flexion, dorsiflexion, hip flexion, leg extension and flexion. (Tr. 395). Plaintiff had a positive straight leg raising test “at 30 with dorsiflexion” on the left side. Id. Ms. Mansell assessed lumbar spinal stenosis and lumbago with sciatica; her plan (“[p]er Dr. Tobias”) was to consult physical therapy and pain management. (Tr. 396). Samuel Tobias, M.D., oversaw Ms. Mansell and noted Plaintiff did not want surgery at this time, but instead wanted to try conservative treatment. Id.

         In November 2010, Plaintiff saw Fatima Ahmad, M.D., for pain management, reporting lower back pain radiating to his left leg for three months. (Tr. 380-82). On examination, Dr. Ahmad noted decreased spine range of motion, mild pain to palpation over the lumbar spine, but intact muscular strength, reflexes, and sensation. (Tr. 381). Plaintiff walked with a limp. Id. Dr. Ahmad prescribed NSAIDs and a muscle relaxant. (Tr. 382).

         In December 2010, Plaintiff saw Howard R. Smith, M.D., for pain management. (Tr. 378-80). On examination, Dr. Smith noted Plaintiff had diffuse tenderness of the lumbar spine and paraspinous muscle areas, and an antalgic gait. (Tr. 379). He also had limited range of motion in flexion, extension, rotation, and lateral bending. Id. Dr. Smith observed a negative straight leg raising test, and Plaintiff was able to heel-toe walk. Id. Dr. Smith assessed sciatica, low back pain, carpal tunnel syndrome, and left leg pain. (Tr. 380). He was “given instructions [regarding] use of medications as ordered, intermittent rest, [and a] back care exercise program.” Id. He was noted to be “stable” with respect to his low back pain, left leg pain, and carpal tunnel syndrome. Id.

         The same month, Plaintiff returned to Dr. Brown, reporting, inter alia, continued low back pain. (Tr. 374-76). On examination, Dr. Brown noted Plaintiff had mild pain to palpation “in the LS spine midline”, and “left leg weakness and sensory loss, drags left leg walking.” (Tr. 375-76). He assessed lumbago and left-sided sciatica, noting symptoms were “consistent with herniated disc”. (Tr. 376). He prescribed NSAIDs and a muscle relaxant, and advised bedrest and heat. Id.

         Also in December 2010, Plaintiff twice saw Samuel Tobias, M.D., for removal of a scalp lipoma. (Tr. 369-74). Each time, Dr. Tobias noted normal gait, no sensory disturbance, and normal motor functioning. (Tr. 370, 372). At a return visit to Dr. Tobias in January 2011, Plaintiff was “[s]till . . . complaining of low back pain”. (Tr. 367). Dr. Tobias again noted no motor, sensory, or strength deficit. Id. Plaintiff told Dr. Tobias he “wants mainly conservative treatment and will continue with pain management” regarding his back pain. Id.

         In November 2011, Plaintiff underwent a neurological evaluation with Aamir Hussain, M.D. (Tr. 441-48). Plaintiff reported headaches since his lipoma removal, carpal tunnel syndrome, and left leg pain. (Tr. 441-42). He reported pain in his left leg for the prior three years, along with numbness in the leg. (Tr. 442). The leg dragged as he walked, he said, causing him to trip and fall as a result. Id. Plaintiff reported he walked up to one and a half blocks, and had used a cane for one year. Id. On examination, Dr. Hussain noted Plaintiff's spine range of motion was normal and muscular strength was intact. (Tr. 443). He also noted Plaintiff had an antalgic gait with pain in the left leg, but his heel to toe gait was normal. (Tr. 445). Dr. Hussain's plan was an “NCS/EMG study for possible lumbar radiculopathy”. (Tr. 447). He noted he might consider epidural blocks depending on the EMG results. Id. He also recommended physical therapy and aqua therapy, and prescribed gabapentin for neuropathic pain. (Tr. 448).

         Plaintiff began physical therapy in December 2011. (Tr. 451). He reported left leg pain “described as numbness with a tingling feeling”, that was “intermittent.” Id. The therapist noted tenderness at ¶ 1, but found Plaintiff's trunk flexion, extension, rotation, and side-bending were within normal limits. (Tr. 452). Strength was within normal limits, and Plaintiff could stand on one leg without losing balance, and stand on his toes for one minute. Id. In the assessment, the therapist noted Plaintiff “demonstrate[ed] some inconsistencies during assessment”, that he had good strength, mobility, and range of motion, and his “leg pain covering all surfaces is not typical of sciatic nerve distribution” making the etiology of his pain “[u]nclear.” (Tr. 453).

         Plaintiff also returned to Dr. Brown in December 2011. (Tr. 455-57). On examination Dr. Brown noted mild pain to palpation over the lumbar spine, bilateral shoulder and knee pain, as well as shuffling gait, and abnormal muscle tone and weakness in Plaintiff's left leg. (Tr. 456-57).

         Plaintiff had six more physical therapy visits in December 2011. (Tr. 460-75). He reported pain varying from 4/10 to 7.5/10. See Id. The therapist frequently noted “no change” in post-treatment pain and symptoms. See Tr. 460, 463, 465, 467, 468, 471. She also noted, however, that he once walked to therapy (causing his pain to be higher) (Tr. 460), and once rode his bicycle to an appointment (Tr. 474). He varyingly reported “less pain after treatment session” (Tr. 471), and “no[t] feeling better at this time” (Tr. 474). The therapist once noted an antalgic gait after therapy. (Tr. 465).

         Physical therapy continued through January 2012. (Tr. 477-92). The therapist noted antalgic gait on multiple occasions. See Tr. 477 (“antalgic gait right noted”), 480 (“antalgic gait right noted, at times”); 482 (“antalgic gait right noted as he walked into therapy today”); 485 (“mild antalgic gait right noted as he walked into therapy today”); 488 (same); 492 (“mild antalgic gait noted after therapy”). At his last visit, Plaintiff was discharged “due to lack of consistent progress”. (Tr. 493). The therapist noted his strength was good, his range of motion was within functional limits, and there were no real changes in his pain; she recommended he see a specialist for his back pain. (Tr. 492).

         Plaintiff returned to Dr. Brown in March 2012. (Tr. 538-40). On examination, Dr. Brown noted mild pain to palpation in Plaintiff's lumbar spine, but normal spine range of motion and muscular strength. (Tr. 540). He also noted sensory loss in Plaintiff's left leg, and an absent left knee jerk. Id. He continued to assess left sided sciatica and lumbago (“consistent with herniated disc”). Id.

         Two days later, Plaintiff saw Dr. Hussain reporting headaches and chronic low back pain. (Tr. 534). He reported physical therapy caused him pain and was “going to start aqua therapy as advised.” Id. On examination, Dr. Hussain noted normal muscle strength except in the left hamstring and left plantar flexion (“4”), and normal muscle tone. (Tr. 535). His left knee was “areflexic” and had “no Babinski”. Id. He had a mild decrease in sensation in his left leg. Id. Plaintiff's gait was “normal-based and antalgic”. Id. Dr. Hussain's plan was an “NCS/EMG study for left lumbar radiculopathy”. Id.

         Plaintiff underwent the EMG study later in March 2012. (Tr. 537-38). It showed a “[d]ecrease in left tibial motor nerve amplitude . . . most likely related to a technical error or body habitus”; a “[n]ormal H reflex on the left”; “[f]ew chronic axon loss changes in the left extensor digitorum brevis muscle which may be related focal foot injury”; and “[c]hronic axon loss changes in two muscles around the left knee” which were “patchy in distribution and insufficient for definite diagnosis of lumbosacral motor.” Id. Dr. Hussain noted: “No EMG evidence of a generalized sensorimotor polyneuropathy affecting the left leg.” Id.

         In October 2012, Plaintiff saw Travis Nickels, M.D., for pain management. (Tr. 746-51). Plaintiff reported left leg and left arm pain. (Tr. 746). He reported symptoms in his left leg worsened since it started two years prior. Id. On examination, Dr. Nickels noted decreased strength in Plaintiff's left leg and that he favored his left leg in the flexed position. (Tr. 750). No. tone abnormalities or atrophy was noted. Id. Plaintiff had a positive straight leg raising test in the sitting and supine position, as well as pain to palpation over his cervical spine, lumbar spine, and paraspinous muscles. Id. He also had pain with facet loading and back extension/rotation. Id. Dr. Nickels noted Plaintiff had diminished sensation along the C5-6 dermatomes and an antalgic gait. Id. His neurologic examination was normal. Id. Dr. Nickels observed Plaintiff's pain was “most consistent with radicular pain” and that he “would likely benefit from interventional injections, but the patient deferred at this time.” (Tr. 751). Dr. Nickels prescribed medication, ordered a cervical spine x-ray due to new right arm symptoms, and noted Plaintiff was “not interested in interventional procedures at this time”. Id.

         In January 2013, Plaintiff saw Augusto T. Hsia, M.D. (Tr. 762-66). On examination, Dr. Hsia noted Plaintiff had decreased lumbar range of motion, walked with a limp, and his toe and heel walking was “decreased”. (Tr. 765-66). Plaintiff had tenderness in his lumbar paraspinal muscles and decreased sensation. (Tr. 766). His reflexes and strength were normal, and his straight leg raising test was negative. Id. Dr. Hsia noted he would order a lumbar MRI to rule out “any significant disc pathology, stenosis”. Id. That MRI revealed: “Progression of lumbar degenerative changes since 9/16/2010 now resulting in moderate L3-L4 and severe L4-L5 central canal stenosis with moderate-severe foraminal stenosis” (Tr. 770).

         At a return visit to Dr. Hsia in May 2013, Plaintiff reported worsening leg and back pain. (Tr. 772). On examination, Dr. Hsia noted decreased lumbar and cervical spine range of motion, as well as decreased reflexes in Plaintiff's knees and ankles. (Tr. 773-74). His lower extremity strength was within normal limits and his straight leg raise test was negative. (Tr. 774). Dr. Hsia referred Plaintiff back to pain management for epidural steroid injections. Id.

         Plaintiff returned to pain management a few days later and saw Maged Guirguis, M.D. (Tr. 779). On examination, Dr. Guirguis noted normal strength, and tone, and gait; he found no loss of sensation in Plaintiff's lower extremities. (Tr. 782). He had pain with facet loading and back extension/rotation. Id. His straight leg raising test was positive both sitting and supine. Id. Dr. Guirguis noted Plaintiff “would likely benefit from interventional injections or surgical interventions, but the patient deferred at this time and wanted to continue with medical management.” Id.

         In July 2013, Plaintiff returned to Dr. Brown. (Tr. 791-93). On examination, Dr. Brown noted mild pain to palpation in the lumbar spine, but normal spine range of motion, and normal muscular strength. (Tr. 792-93). He also observed Plaintiff had sensory loss in his left leg, and an absent left knee jerk. (Tr. 793).

         Plaintiff returned to Dr. Brown in September 2013. (Tr. 796-98). Dr. Brown observed neck pain on motion, and mild pain to palpation in the lumbar spine. (Tr. 797). Plaintiff's spine range of motion was again normal, and his muscular strength intact. (Tr. 798). His neurological examination revealed several positive findings: shuffling gait, abnormal muscle tone (“WASTING”), muscular weakness in the left lower leg, and a sensory deficit in the left leg. Id.

         Plaintiff saw Dr. Brown twice more in 2013 (November and December). (Tr. 808-10; 813-15). Each visit, Dr. Brown noted mild pain to palpation in the lumbar spine, a shuffling gait, and left leg weakness. (Tr. 809-10, 814-15). He also noted “abnormality of coordination UNSTEADY” and “sensory deficit LEFT LEG” in November (Tr. 810); and “abnormal muscle tone SPATIC [sic] LEFT LEG” in December (Tr. 815). Dr. Brown's treatment plan each visit was bedrest, medication, and warm moist heat. (Tr. 810, 815).

         Plaintiff returned for neurological follow up in January 2014 and saw Dulara Hussain, M.D. (Tr. 818-19). Plaintiff reported he was “still having pain in his back and left leg”, but it did not “bother [him] like before”. (Tr. 818). Dr. Hussain noted he “saw spine medicine and pain management” and his “current pain medications help[] him”. Id. On examination, Dr. Hussain noted Plaintiff's muscle strength was normal, with no drift, and normal tone. (Tr. 819). His reflexes were also normal, and his sensation “intact”. Id. His gate was noted to be “normal-based”. Id. Dr. Hussain noted Plaintiff's main complaint was chest pain on his right side and down his right arm. Id. He also noted “[b]ack pain is better” and that he “doubt[ed] this [was] neurological.” Id.

         In March 2014, Plaintiff returned to Dr. Brown who again observed mild pain to palpation in the lumbar spine, shuffling gait, a dragging left leg, and a left leg sensory deficit. (Tr. 825). At a June 2014 visit, Dr. Brown observed mild pain to palpation in the lumbar spine, bilateral shoulder and knee pain, as well as left hip pain. (Tr. 831-32). However, he also noted a ...


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