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Mascio v. Commissioner of Social Security Administration

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

June 20, 2018



          Thomas M. Parker United States Magistrate Judge

         I. Introduction

         Plaintiff, Andrew Mascio, seeks judicial review of the final decision of the Commissioner of Social Security denying his applications for supplemental security income and disability insurance benefits under Titles II and XVI of the Social Security Act (“Act”). The parties have consented to my jurisdiction. ECF Doc. 10.

         Because the ALJ supported her decision with substantial evidence and because Mascio has not identified any incorrect application of legal standards, the final decision of the Commissioner must be AFFIRMED.

         II. Procedural History

         On October 10, 2012, Mascio applied for disability insurance benefits and supplemental security income, alleging disability beginning May 1, 2009. (Tr. 346, 353-354) After the claims were denied initially on March 2, 2013 (Tr.148) and on reconsideration on May 3, 2013 (Tr. 170), Mascio requested a hearing. (Tr. 248) Administrative Law Judge (“ALJ”) Susan G. Giuffre heard the case on July 16, 2014 (Tr. 109-145) and found Mascio not disabled in an October 31, 2014 decision. (Tr. 194-217) Upon Mascio's request for further review, the Appeals Council vacated the ALJ's decision, and remanded the matter for further proceedings including a rehearing of the claims. (Tr. 218-224) The Appeals Council instructed the ALJ, among other things, to clarify whether Mascio's need to alternate between sitting and standing was medically supported and, if so, to specify the length of time and the frequency with which Mascio needed to alternate positions. (Tr. 219-220)

         Following the remand order, ALJ Giuffre heard the case again on June 8, 2016. (Tr. 57-107) Mascio testified again as did a vocational expert, Bret Salkan. (Tr. 57) On July 11, 2016, ALJ Giuffre issued a second unfavorable decision. (Tr. 38-50) The Appeals Council denied Mascio's request for further review, rendering the ALJ's decision final. (Tr. 1-4) Mascio instituted this action to challenge the Commissioner's final decision.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Mascio was born on June 17, 1965 and was 51 years old when the ALJ issued her second decision. (Tr. 353) He completed high school and had some on-the-job training. (Tr. 113) He previously worked as a sales manager for a company that manufactured granite countertops and as a sales manager for a cabinet manufacturer. (Tr. 115-116) He also previously operated his own cabinetry company. (Tr. 117)

         B. Medical Evidence

         Mascio began experiencing back and neck pain in the mid-1990s. (Tr. 500) On January 29, 1999, an MRI showed a grade I spondylolisthesis of L5 on S1, with a broad based disc bulge, as well as disc dehydration at the L1-2 level. (Tr. 583) Dr. Steven Takacs, Mascio's primary care physician, diagnosed degenerative joint disease and lumbosacral radiculopathy in 2001. (Tr. 522-524) On December 1, 2004 an MRI of Macio's lumbar spine showed a right lateral disc protrusion at ¶ 4-5 moderately narrowing the right neural foramen and disc space narrowing at ¶ 4-5 and L5-S1. (Tr. 585) An MRI of his hip was normal. (Tr. 584) A December 1, 2004 EMG study was also normal. (Tr. 587)

         In 2005 and 2006, Mascio treated with Samuel K. Rosenberg, M.D., for back pain and underwent facet nerve block and epidural steroid injections. (Tr. 572-79, 594-601, 616-67, 784-785) A July 20, 2005 MRI of Mascio's cervical spine showed degenerative changes with bony foraminal narrowing on the left at ¶ 2-3 and C3-4. (Tr. 588)

         Mascio saw Lisa Brown, M.D., on November 5, 2008. He was not taking any medication at the time. He reported a return of his back pain symptoms. Neuromuscular examination was grossly intact and his sensation and motor strength were intact. Mascio was able to rise from sitting to standing without difficulty. He had pain and difficulty with range of motion in his lumbar and cervical spine. Dr. Brown diagnosed facet arthropathy, thoracic back pain and cervical pain with a history of cervical spine disc disease and recommended facet blocks. She also ordered an MRI of Mascio's thoracic spine. (Tr. 783) The MRI, performed on November 7, 2008, showed a central disc osteophyte herniation at ¶ 5-6 deforming the ventral thecal sac and slightly flattening the ventral thoracic cord resulting in moderate canal stenosis and disc osteophyte protrusion and endplate spondylosis resulting in mild canal stenosis T6-7 to T10-11. (Tr. 589)

         On November 8, 2012, following a four year gap in treatment, Mascio saw Martin Berger, M.D., at Metro Health Medical Center for chronic back pain. (Tr. 822) On examination, Mascio's back range of motion was intact, his neurovascular system was intact distally, and straight leg raising (SLR) testing was negative. (Tr. 823) Dr. Berger diagnosed thoracic spinal stenosis and prescribed a 5-day course of prednisone and Neurontin. He told Mascio to use Motrin or Naproxen, but not both. He encouraged Mascio to make an appointment with his primary care physician and referred him to Metro Health's Department of Physical Medicine and Rehabilitation (“PM&R”). (Tr. 824)

         Mascio met with David M. Kuentz, D.O., on November 27, 2012. He said he was planning to schedule an appointment with PM&R to continue nerve blocks for his pain. In the meantime, he was using Voltaren and Vicodin. Dr. Kuentz also prescribed Wellbutrin. (Tr. 871)

         Mascio saw Murray Andrew Greenwood, M.D. on December 3, 2012 for chronic pain, worsening mood and vision changes. (Tr. 811) He had diffuse tenderness over his spine and many major muscle groups. He was mildly positive for numbness in both feet. (Tr. 812) He had full strength in all muscle groups. Dr. Greenwood diagnosed chronic spondylogenic multilevel back and neck pain with facet versus canal stenosis and myofascial features, central pain syndrome, and depression. He planned to schedule x-rays and prescribed Lyrica and physical therapy. (Tr. 813)

         X-rays of Mascio's pelvis showed no acute fractures, well maintained joint spaces, and no significant arthritic changes. (Tr. 827) X-rays of Mascio's cervical and lumbar spine showed mild foraminal stenosis in the cervical spine at levels C2-3, C3-4, and C4-4, and disc space narrowing in the lumbar spine at ¶ 4-5 and L5-S1. (Tr. 834-835) An x-ray of Mascio's left shoulder showed mild degenerative spurring at the acromioclavicular joint. (Tr. 835)

         On January 4, 2013, Mascio saw Charles F. Misja, Ph.D., for a consultative psychological evaluation. (Tr. 789-795) Mascio reported past alcohol abuse but that he had been sober for 20 years. He indicated he'd relapsed the prior year and had been charged with DUI. He stated he had been sober for a year by the time of the evaluation. (Tr. 791) Mascio's history included having been abused as a child. (Tr. 790)

         Mascio reported doing most of the meal preparation at home, but he did not help with cleaning or laundry due to problems lifting. He did not drive due to a suspended license. He liked to watch TV, followed baseball and used Facebook. He managed the family finances and had normal daily grooming, although he required some assistance in the shower. (Tr. 92)

         At the exam, Mascio was dressed and groomed appropriately; he was friendly and cooperative. His affect was constricted and he had a mildly depressed mood. Mascio told Dr. Misja that he slept four to five hours a night due to pain. (Tr. 792-793) Dr. Misja diagnosed major depression with alcohol dependence in early remission. (Tr. 793) Dr. Misja assigned a Global Assessment of Functioning score of 50, but opined that Mascio would have only minimal issues with employment due to psychologic factors. He opined that Mascio might experience “minimal to moderate” problems in his ability to respond appropriately to supervision. (Tr. 794)

         Mascio saw Murray Greenwood, M.D. on January 14, 2014. Mascio reported progressive back pain. He described the pain at the T4 level radiating up and down. He had numbness and tingling in both legs. (Tr. 801-803) Mascio reported that the pain was worse with walking, sitting or standing for greater than 15 minutes. (Tr. 804) Dr. Greenwood noted no gait clumsiness but observed Mascio was walking with a limp. Mascio walked without an assistive device and moved easily from sitting to standing. He was able to heel, toe, and tandem walk. (Tr. 803-805) Spine and shoulder x-rays showed minimal lumbar degenerative disc disease and left foraminal stenosis and mild degenerative disc disease of the cervical spine. (Tr. 801-802) Straight leg raise testing was mildly positive for numbness in feet on both sides. (Tr. 805) Dr. Greenwood felt Mascio suffered from chronic spondylogenic multi-level back and neck pain with facet versus canal stenosis and myofascial features, central pain syndrome and depression. He prescribed Lyrica and physical therapy. Dr. Greenwood noted that he would not prescribe opioids due to a prior history of cocaine and alcohol addiction. (Tr. 806) An MRI performed on January 28, 2013 showed moderate to severe facet arthropathy in Mascio's cervical, thoracic, and lumbar spine with thoracic disc extrusion at ¶ 5-6 and T6-7. (Tr. 858-859) Mascio's lab work was positive for anti-nuclear antibody. (Tr. 1000)

         On February 5, 2013, Dr. Kuentz explained that long term use of Vicodin was not appropriate. (Tr. 851) Mascio reported more frequent heart palpitations or “butterflies” in his chest and Dr. Kuentz noted a family history of coronary disease. (Tr. 851)

         Mascio saw Dr. Kuentz again on March 5, 2013, complaining of chronic lumbar, thoracic and cervical pain as well as pain in his hips. Dr. Kuentz noted that Mascio had self-treated in the past with alcohol, but was no longer drinking. Mascio also reported that chronic pain and the winter season caused mood problems. (Tr. 845) Mascio told Dr. Kuentz that he had stopped taking Lyrica due to side effects. He had also stopped taking prednisone and Neurontin. His only relief came from Vicodin. (Tr. 845) Given Mascio's history of substance abuse, Dr. Kuentz wanted Mascio to start weaning off of Vicodin. (Tr. 846)

         An EMG study on June 10, 2013 was normal, with no evidence of radiculopathy or polyneuropathy. (Tr. 1069) Mascio returned to Dr. Kuentz on July 9, 2013 for back pain primarily across his upper back and shoulders. (Tr. 1081) Dr. Kuentz continued to express concern about his use of Vicodin. (Tr. 1082)

         Mascio followed-up with Dr. Greenwood on August 29, 2013. (Tr. 1112) Mascio complained of numbness in his hands and feet, with fatigue, impaired balance, and occipital headaches. (Tr. 1113) Examination showed 4 strength in Mascio's deltoids and hip extension and 5/5 in the remaining tested muscle groups. Dr. Greenwood noted numerous tender points with intolerance to light touch at the neck, back, hips, and shoulder girdles. Mascio moved slowly from sitting to standing. He was able to heel, toe, and tandem walk. His sensation was intact. (Tr. 1117) Dr. Greenwood diagnosed lumbar facet syndrome, cervical facet arthritis, cervicogenic headache, and myofascial pain lumbar. He opined that epidural injections would not be highly successful but that nerve blocks might help with a “refresher” physical therapy course. Dr. Greenwood refilled Mascio's pain medication but discussed that he should taper over time. (Tr. 1118)

         On October 21, 2013, Mascio started treating with Dr. Vimal Desai and Dr. Brendan Astley, pain management physicians. On exam, Mascio had painful range of motion in his cervical and lumbar spine. He had normal motor and sensory function and a normal gait. (Tr. 1135) Dr. Astley proposed median nerve branch blocks and an injection into the shoulder bursa. (Tr. 1137) Mascio underwent a series of cervical epidural steroid injections in November and December 2013. (Tr. 1163, 1169, 1175-1177) Dr. Astley also performed a trigger point injection into Mascio's left trapezius area on December 13, 2013. (Tr. 1175-1776)

         Mascio followed up with Dr. Astley's nurse practitioner, Todd Markowski, on December 23, 2013. Mascio reported that he had better pain relief in the past from injections. He was having headaches every other day. He had full strength in all extremities and normal sensation, but limited range of motion in both shoulders. (Tr. 1181-1183) On February 21, 2014, Nurse Markowski noted that Mascio described gradually worsening pain. (Tr. 1188)

         On April 2, 2014, Mascio met with Dr. A. Wright. Mascio reported that epidural injections had not provided any relief. Dr. Wright did not increase in his narcotic medication due to problems Mascio had with constipation. (Tr. 1201) Dr. Wright ordered a “HLA-B27” test to rule out ankylosing spondylitis, a form of inflammatory arthritis. (Tr. 1204) A cervical MRI on April 16, 2014 showed significant facet arthropathy - unchanged from his 2013 MRI with mild foraminal narrowing on the left but no significant foraminal encroachment. (Tr. 1215)

         In a May 1, 2014 examination by Dr. Astley (Tr. 1217), he found tenderness to palpation over the paraspinal area. Everything else was normal. Dr. Astley noted that the HLA-B27 test was positive and referred Mascio to rheumatology for further care. He also increased Mascio's dosage of OxyContin. (Tr. 1219)

         Mascio saw a rheumatologist, Dr. Stanley Ballou, on May 30, 2014. Dr. Ballou noted decreased motion in Mascio's neck and lower back and painful range of motion in his shoulders. Mascio walked independently and without difficulty. He had no swelling in his hands or fingers and his grip strength was normal. Dr. Ballou questioned the diagnosis of ankylosing spondylitis because, despite the positive HLA-B27 testing, x-rays did not appear consistent with the disease. Dr. Ballou ordered additional imaging of Mascio's sacroiliac joints. (Tr. 1227)

         Mascio's examination findings were unchanged at a follow up examination with Dr. Astley on June 26, 2014. (Tr. 1233-1235) On July 8, 2014, Tyler Gadjos, S.P.T. evaluated Mascio for physical therapy. (Tr. 1245-1249) Mascio had painful and limited range of motion of his spine and shoulders. Mr. Gadjos opined that Mascio's prognosis for therapy was good. (Tr. 1247-1248)

         On July 9, 2014, Mascio saw Dr. Michael Harris, M.D., on referral from Dr. Astley for a “disability exam.” (Tr. 1253) Mascio's neurological exam was normal except for slightly decreased (4) decreased strength in his hip flexors bilaterally. (Tr. 1256) Dr. Harris noted that conservative treatments had failed and that Mascio was a poor candidate for surgery. Dr. Harris noted Mascio was very focused on his pain and very limited in terms of functional capacity. Dr. Harris commented that Mascio's high dose of Morphine may be a barrier to work because it affected his cognition. (Tr. 1257) Dr. Harris completed a medical source statement after he met with Mascio one time. (Tr. 1240-1241, 1257)

         Appointments on August 22, 2014 and October 6, 2014 with Dr. Astley showed unchanged objective findings. (Tr. 1262-1264, 1272)

         On November 26, 2014, Mascio met with Dr. Bukola Ojo. Mascio had normal range of motion in his back but tenderness over his cervical and lumbar area. His sensation was intact, but his motor strength was 4/5 throughout. He was only able to lift his shoulders 90 degrees. (Tr. 1290)

         Mascio returned to see Dr. Ballou on December 26, 2014. (Tr. 1300) Dr. Ballou decided to start Humira infusions - a treatment for ankylosing spondylitis, concluding a positive response to the drug would confirm the diagnosis. (Tr. 1300)

         Mascio had tenderness in the cervical and lumbar region with limited range of motion at a January 15, 2015 appointment with Dr. Astley. (Tr. 1305)

         Mr. Mascio began Humira infusions and felt that they were somewhat helpful. However, he had developed a skin rash so Dr. Ballou stopped the Humira infusions and ordered a skin biopsy of the rash. (Tr. 1377) Examination showed that Mascio had full range of motion of his shoulders, elbows, wrists and ...

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