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Sistrunk v. Commissioner of Social Security

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

June 26, 2018



          Thomas M. Parker United States Magistrate Judge

         I. Introduction

         Plaintiff, Darren Sistrunk, 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. 11.

         Because statements found in the ALJ's decision and the record evidence support a finding that Sistrunk failed to prove he met Listing 1.04, the ALJ's Step Three findings must be affirmed. However, because the ALJ did not state good reasons for rejecting the treating physician's opinion, the final decision of the Commissioner must be VACATED and the claim must be REMANDED for further proceedings.

         II. Procedural History

         On November 29, 2011, Sistrunk applied for disability insurance benefits and supplemental security income, alleging disability beginning February 1, 2007. (Tr. 399-404, 406-411) The claims were denied initially and on reconsideration. (Tr. 218- 229, 230-241, 242- 255, 257-270) Sistrunk requested a hearing on October 19, 2012. (Tr. 312) Administrative Law Judge (“ALJ”) Susan G. Giuffre heard the case on June 12, 2013 (Tr. 181-216) and found Sistrunk was not disabled. (Tr. 271-283) After Sistrunk's request for review (Tr. 377), the Appeals Council vacated the ALJ's 2013 decision on February 9, 2015, and remanded the matter to ALJ Giuffre to conduct further proceedings. (Tr. 287-291)

         Following the remand order, ALJ Giuffre held a second hearing on May 27, 2015 (Tr. 150-179) and issued a second unfavorable decision on July 1, 2015. (Tr. 8-21) The Appeals Council denied further review, rendering the ALJ's decision final. (Tr. 1-4) Sistrunk instituted this action to challenge the Commissioner's final decision.

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Sistrunk was born on December 18, 1961 and was 53 years old when the ALJ issued her 2015 decision. (Tr. 399) He completed high school and attended vocational school to become an electronics technician, but dropped out because the coursework was too difficult for him. (Tr. 185) For many years, he worked for the Zircoa Company in several different production jobs as well as cleaning and maintenance. (Tr. 186-187) He had not worked since his alleged 2007 onset date. He lived with his mother and helped care for her until she died in 2011. (Tr. 204-206)

         B. Medical Evidence

         Eulogio Sioson, M.D., examined Sistrunk on January 23, 2012 at the request of the State Disability Determination Service (“DDS”). (Tr. 501-507) An x-ray ordered by Dr. Sioson showed degenerative changes consisting of severe disc space narrowing and endplate osteophyte formation at the L4-5 level and hypertrophic facet changes at the L4-5 and L5-S1 levels. (Tr. 501)

         Sistrunk established care with Erron Bell, D.O. on May 15, 2012. Sistrunk reported he'd had back pain for four years. Dr. Bell reviewed Sistrunk's x-rays from January. (Tr. 512) Dr. Bell noted reduced range of motion in Sistrunk's back. Sistrunk's extremities were normal; his muscle strength was intact; and his spine range of motion was normal. After diagnostic testing, Dr. Bell diagnosed elevated blood pressure and prescribed medication. He also referred Sistrunk to pain management. (Tr. 514) Sistrunk followed-up with Dr. Bell on May 31, 2012. He had been feeling well since his last appointment and his blood pressure was normal. (Tr. 553)

         On July 31, 2012, Sistrunk established care with Zachary Allred, D.O. at the pain management department of Metro Health Medical Center. (Tr. 524) Sistrunk described his pain as sharp and stabbing; as having lasted for the past year; and as being alleviated by rest and stretching. (Tr. 524) He told Dr. Allred that he had been fired from his job several years ago for drug abuse issues. He said he was trying to get disability benefits but would also be happy if his back pain improved and he could return to work. (Tr. 525) Sistrunk said that he could ambulate and perform daily activities without devices. Dr. Allred found Sistrunk's pelvis to be asymmetric, elevated to the right side. Sistrunk had mild tenderness to palpation in the left lumbosacral muscles. Allred did not observe any spasms or trigger points and straight leg raise testing was negative. (Tr. 526) Dr. Allred diagnosed low back pain secondary to facet arthropathy. He told Sistrunk that physical therapy and a home exercise program were the key for his back rehabilitation. Sistrunk was hesitant to pay the five dollar copay for physical therapy. He also seemed hesitant to do the home exercise program but accepted it. Dr. Allred told Sistrunk that he would not qualify for disability because he had not undergone any treatment or rehabilitation for his low back pain. (Tr. 527)

         Sistrunk went to the emergency room at South Pointe Hospital on November 12, 2012. (Tr. 569) He reported pain down his right leg and buttock and down the posterior thigh. He said that the pain had started five to seven days earlier. He said he had no back pain. He had normal range of motion, strength and reflexes. (Tr. 570) Straight leg raising was negative. (Tr. 571) He was diagnosed with sciatica of the right side. (Tr. 572)

         Sistrunk began pool-based physical therapy on December 18, 2012. He complained of constant low back pain which radiated down the right lower extremity to the toes, with left-sided low back and knee pain. (Tr. 607) On December 20, 2012, the therapist noted that Sistrunk had elevated blood pressure and sent him to the emergency room. (Tr. 593) Sistrunk was discharged from physical therapy on March 13, 2013 because he had not achieved his treatment goals. (Tr. 608)

         On December 20, 2012, Sistrunk went to the hospital with elevated blood pressure. He also reported blurry vision and back pain but said these were chronic and no worse than usual. (Tr. 575) Sistrunk had normal strength and no sensory deficits. (Tr. 577) He was instructed to follow up with his primary care physician. (Tr. 577)

         On January 2, 2013, Sistrunk met with Nathan Tracey, D.O., to follow-up on his high blood pressure. (Tr. 578) Sistrunk also reported chronic back pain. He had normal range of motion, gait, coordination, and muscle tone. (Tr. 579-580) Dr. Tracey prescribed medication for Sistrunk's high blood pressure and recommended diet and regular aerobic exercise. (Tr. 580) Sistrunk followed-up with Dr. Tracey on January 25, 2013. He said his diet was healthy but he was not exercising due to back pain. (Tr. 582) Sistrunk had normal muscle tone and gait. Dr. Tracey continued his medications and recommended regular aerobic exercise. (Tr. 584)

         On February 19, 2013, Sistrunk went to the emergency room at South Pointe Hospital complaining of low back pain. He was diagnosed with lumbosacral neuritis. (Tr. 591)

         On March 27, 2013, Sistrunk started treating with Euglok Yap, M.D. Dr. Yap administered a lumbar epidural steroid injection. (Tr. 617) He administered a second injection on April 17, 2013. (Tr. 58)

         On April 1, 2013, Sistrunk saw William Welches, D.O. for pain management. Sistrunk reported low back pain travelling down his left leg. (Tr. 622) He reported poor sleep habits and two hours of uninterrupted sleep each night. (Tr. 622) Sistrunk told Dr. Welches that osteopathic manipulative therapy (“OMT”) had not helped his pain. He rated his low back pain as ranging from 5 to 8/10 with numbness and tingling into his legs. (Tr. 623) Dr. Welch performed OMT on April 1, 2013 but indicated that further OMT treatments were unwarranted because of lack of progress. He recommended that Sistrunk should further investigate epidural injections, which had provided temporary relief. (Tr. 625)

         Sistrunk met with Dr. Tracey on April 10, 2013 for hypertension and back problems. (Tr. 587) Dr. Tracey noted that Sistrunk was treating with pain management and had received multiple shots. (Tr. 587) Sistrunk complained of spasms or cramps in his leg. (Tr. 587-588) He had normal coordination, gait, and muscle tone. Dr. Tracey noted that Sistrunk was depressed - he felt like his back wouldn't heal or stop hurting. (Tr. 589)

         Sistrunk saw Dr. Tracey on July 11, 2014. He complained that his lower back pain was worse than the prior year. The pain radiated down his left leg and he was having difficulty sleeping. He also complained of leg weakness and decreased sensation in his leg. Physical therapy and injections had provided minimal relief. Sistrunk had 3/5 strength in his left hip flexor, 3/5 strength in his left knee and 4/5 strength in his left foot. He had 5/5 strength in his right lower extremity. He had decreased sensation to palpation at the lateral aspect of the lower leg, but normal muscle tone. (Tr. 628) Sistrunk requested pain medication. (Tr. 627) Dr. Tracey diagnosed spondylolisthesis of the lumbar region, lumbar degenerative disc disease and hypertension. He prescribed pain medication and recommended that Sistrunk lose weight. (Tr. 629) In a follow up visit on July 25, 2014, Sistrunk told Dr. Tracey his back pain was the same. He had normal muscle tone, gait and range of motion. He had reduced strength in his hips. (Tr. 636) Dr. Tracey ordered an MRI of Sistrunk's lumbar spine. (Tr. 637)

         Sistrunk started treating with Patrick Shaughnessy, M.D., at South Pointe Physical Medicine Clinic on August 13, 2014. Sistrunk reported that he'd had a sports injury in 1980 but his back pain became worse five years ago. He told Dr. Shaughnessy that he spent ten hours a day reclining. (Tr. 642) Physical examination showed decreased strength in the left lower extremity from -4 to 4 out of 5 at the hip and knee. Dr. Shaughnessy also noted a loss of sensation on the left in an S1 distribution. Straight leg raising test was positive on the left. (Tr. 644) Dr. Shaughnessy prescribed pain medication and recommend daily walking and weight loss. He thought that Sistrunk was a “candidate for SSI” and that surgery might be an option. (Tr. 645)

         A lumbar MRI on August 19, 2014 showed a grade I anterolisthesis of L4-5 and a grade I retrolisthesis of L5-S1. There were mild superior and inferior endplate compression deformities of all lumbar vertebrae and a remote bilateral L4 pars defect. At ¶ 3-4, there was moderate-to-severe canal stenosis due to hypertrophic facet changes as well as developmental shortening. The L4-5 interspace was noted to be severely narrowed with degenerative endplate changes and a left-sided disc bulge. The MRI revealed “suspected impingement” of the L4 nerve root. At ¶ 5-S1, there was severe disc space narrowing with disc bulge to the right, and endplate degenerative changes with minimal encroachment on the ventral thecal sac, but with moderate right and mild left foraminal narrowing. (Tr. 697)

         Sistrunk saw Virginia Factor, D.O. on August 19, 2014 in the Family Practice Department at the Cleveland Clinic. Dr. Factor checked Sistrunk's hypertension and completed paperwork for an RTA paratransit pass so Sistrunk would have direct transportation; walking to the bus stop aggravated his pain. (Tr. 647)

         Sistrunk followed up with Dr. Shaughnessy on September 3, 2014. Sistrunk complained of pain radiating down both legs. His pain was worse than his last visit and rated as 6/10. Sistrunk reported that his legs would occasionally “go weak.” (Tr. 652-653) Dr. Shaughnessy noted bilateral decreased ankle jerk reflexes. Straight leg raising was negative for radicular pain but caused back and hip pain. Sistrunk had limited range of motion in his back due to pain, but full range of motion in his extremities and 4/5 strength in his hips. His gait was abnormal; he leaned forward and he would not heel or toe walk or perform tandem gait. Romberg's sign was equivocal. (Tr. 653) Dr. Shaughnessy diagnosed spondylolisthesis, spondylolysis and radiculopathy. He noted that Sistrunk's symptoms were consistent with his physical exam and MRI findings. He recommended a conservative approach and that Sistrunk pursue disability. He also recommended that Sistrunk be evaluated for possible surgery but noted that he would be reluctant to pursue surgery in the absence of progression of muscle weakness. Dr. Shaughnessy opined that it was extremely unlikely that Sistrunk's condition would improve; he expected it to stay the same or slowly deteriorate. (Tr. 654) Dr. Shaughnessy recommended that Sistrunk walk as much as he was able and that he limit his lifting to no more than 10 pounds, with no bending to lift. (Tr. 655)

         On September 12, 2014, Sistrunk followed up with Dr. Tracey for his high blood pressure. (Tr. 656) He had adjusted his diet and decreased his portion sizes. He was in pain management for his back pain. He told Dr. Tracey that he was not planning to pursue surgery until the pain management was no longer dealing with his pain. He had tenderness in his back on palpation. (Tr. 657)

         Sistrunk followed up with Dr. Shaughnessy on October 1, 2014. He said that his back pain had not changed since the prior visit. Sistrunk reported that he had walked ½ to ¾ mile several times. It was painful and he rested at bus stops along the way. (Tr. 664) Straight leg raising was negative. Sistrunk had full range of motion in his extremities. His lower back was painful to palpation. (Tr. 665) Dr. Shaughnessy noted that Sistrunk “appears disabled.” (Tr. 666) He diagnosed right L5 neuritis and recommended that he continue his medication and walking routine. (Tr. 666-667)

         Sistrunk told Dr. Tracey that his back was really bothering him on October 13, 2014. The pain had started when he woke up that morning. (Tr. 668) Sistrunk had normal muscle tone. Dr. Tracey ...

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