United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. KNEPP II UNITED STATES MAGISTRATE JUDGE
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.
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).
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
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.
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).
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.
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).
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.
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.
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).
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.
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.
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.
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.
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.
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).
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).
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).
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
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.
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.”
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”.
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).
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.
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.”
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).
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.
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,
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]
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 ...