United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE
Acie Black (“Black”) seeks judicial review of the
final decision of Defendant Commissioner of Social Security
(“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Doc. 1.
This Court has jurisdiction pursuant to 42 U.S.C. §
405(g). This case is before the undersigned Magistrate Judge
pursuant to the consent of the parties. Doc. 16.
reasons set forth below, the Commissioner's decision is
filed his applications for SSI and DIB in April and May 2014,
respectively, alleging a disability onset date of May 1,
2010. Tr. 21, 307. He alleged disability based on the
following: neck injury, arthritis, left arm tendon damage,
major neck surgery, multiple left arm surgeries,
“crushed L5 lumbar, ” arthritis and bursitis in
both shoulders, carpal tunnel, many fractured bones, dizzy
spells, severe back pain, PTSD, and severe depression. Tr.
191. After denials by the state agency initially (Tr. 155,
156) and on reconsideration (Tr. 187, 188), Black requested
an administrative hearing. Tr. 223. A hearing was held before
Administrative Law Judge (“ALJ”) Jeffrey Raeber
on April 1, 2016, Tr. 44-91, wherein Black amended his
alleged onset date to February 22, 2014. Tr. 45, 306. In his
May 1, 2016, decision (Tr. 21-36), the ALJ determined that
there are jobs that exist in significant numbers in the
national economy that Black can perform, i.e. he is not
disabled. Tr. 35. Black requested review of the ALJ's
decision by the Appeals Council (Tr. 16) and, on April 25,
2017, the Appeals Council denied review, making the ALJ's
decision the final decision of the Commissioner. Tr. 1-3.
Personal and Vocational Evidence
was born in 1964 and was 49 years old on the date his
applications were filed. Tr. 28. He has the equivalent of a
GED and last worked in 2010 as a meat cutter in a
slaughterhouse. Tr. 49, 64. He also climbed poles for a cable
company and worked as a finisher in a plant that made
refrigeration trucks. Tr. 53, 55.
Relevant Medical Evidence
Black has a history of degenerative disc disease in his
lumbar and cervical spine and multiple injuries and
surgeries. Tr. 475-476, 1301 (throughout the years, fractures
in his lumbar spine, cervical spine, sternum, hands, etc.) He
had cervical surgery in 1992 and surgery on his left arm in
2010. Tr. 1301. He has a history of alcohol abuse and stopped
drinking in 2012. Tr. 1301. He previously applied for
disability and his application was denied in 2012. Tr.
February 4, 2014, Black saw Jianming Han, M.D., his primary
care provider, complaining of back pain and requesting a
referral to pain management. Tr. 696. He had pain between his
shoulder blades and in his low back radiating into his left
buttock and sometimes shooting down to the thigh area. Tr.
696. His pain was variable; on a good day it was
“tolerable” and on a bad day, 10/10. Tr. 696. It
was worse with sitting for a long time and on that day it was
6/10. Tr. 698. He was taking over-the-counter Aleve. Tr. 698.
He had just gotten custody of his three grandchildren, aged
1, 4 and 6 and could not physically pick them up. Tr. 698. He
reported having previously had physical therapy, which had
helped him. Tr. 698. Upon exam, he had mild tenderness in the
lumbar and thoracic spinal areas with no focal deficits,
normal sensation, normal reflexes, normal coordination, and
normal muscle strength and tone, except 4/5 strength in his
left leg due to pain. Tr. 698. His spinal range of motion was
limited in all directions especially forward and backward
bending and his cervical spine had some flattening. Tr. 698.
He had a normal gait with tandem walking and walking on heels
and toes. Tr. 698. Impressions included thoracic back pain
and degenerative disc disease lumbosacral spine with
radiculopathy. Tr. 699.
February 22, Black went to the emergency room with complaints
of back pain beginning the day before when he was moving
sand. Tr. 700. He was also shoveling snow over the weekend.
Tr. 700. His exam was unremarkable other than back pain and
paraspinal muscle tenderness. Tr. 700. He was assessed with
an acute lumbar strain and provided prescriptions for
hydrocodone, naproxen and cyclobenzaprine. Tr. 701.
follow up appointment with Dr. Han on February 25, Black
reported that he had not gotten a pain management appointment
yet. Tr. 703. He stated that his back had been stiff and sore
from shoveling snow and that the next day “he was
grinding the liftspring of his truck, ” picked up a
heavy chest and put it in the back of his truck and he heard
a “popping/grinding sound over [his] low back.”
Tr. 703. He rated his pain an 8/10 and stated that a heating
pad had helped it feel better. Tr. 703. His physical exam
findings were the same as his last visit. Tr. 705. Dr. Han
continued his naproxen and cyclobenzaprine prescriptions. Tr.
March 13, 2014, Black attended his first pain management
appointment with Jeffrey Zachary, M.D. Tr. 1089. He reported
low back pain for years, now shooting down his left leg, and
numbness and tingling. Tr. 1089. His pain was 4/10 that day.
Tr. 1089. His pain was made worse by sitting, walking,
standing and using stairs, and better with use of a TENS
unit, physical therapy, heating pad, and ice packs. Tr. 1089.
Over the counter medications did not work. Tr. 1089. He was
feeling down more and sleep was more fragmented; he had
anhedonia, generalized anxiety and perseveration. Tr. 1089.
Upon exam, he walked with an antalgic gait to and from the
exam room but was able to ambulate on his heels and tip toes
without difficulty. Tr. 1089. He had a limited range of
motion in his spine, spinal tenderness (worse on the left),
muscle spasms upon deep palpation, positive straight leg
raises, and 4 motor strength in the muscles on his left
and 5/5 on the right. Tr. 1090. Diagnoses were degeneration
of lumbar or lumbsosacral intervertebral disc, thoracic or
lumbosacral neuritis or radiculitis unspecified, unspecified
arthropathy involving other specified sites, and myalgia and
myositis. Tr. 1090. Dr. Zachary recommended Black continue
his current medications (Percocet and cyclobenzaprine) and
ordered a lumbar MRI. Tr. 1090.
April 14, 2014, Black saw Dr. Han complaining of slow
urination and he also had a headache. Tr. 707. He reported
that his upper back and neck had been tense and that he took
his muscle relaxer and it improved. Tr. 707. He also needed
new eyeglasses and would forget to eat. Tr. 707. He was
“very busy, on the go all the time, ” fishing,
and going to his grandson's soccer games. Tr. 707. He
denied anxiety, mental problems or depression. Tr. 707.
23, 2014, Black reported to pain management that he had 70%
improvement after an injection in his back two weeks prior
and that it had worked well for him. Tr. 1093. He continued
to do okay with his medications and they did not cause side
effects. Tr. 1093. He stated that he had pain in his right
shoulder shooting up into his neck and giving him headaches.
Tr. 1093. He also stated that he was out of pain medication
and his pain was 7/10. Tr. 1093.
3, 2014, Black had an MRI of his spine, which showed
multilevel degenerative disc degeneration, spondylosis, and
disc bulges. Tr. 1115-1116. He had L2-3 Schmorl's nodes
with moderate type I changes; L3-4 disc bulge with
superimposed left foraminal/far lateral disc herniation
impinging on the exiting left L3 nerve root; L4-5
circumferential disc bulge; and L5-S1 right central annular
tear. Tr. 1116.
2, 2014, in connection with Black's application, an SSA
field office employee had a telephone call with Black and
observed that Black had no difficulty understanding or
concentrating during the interview, he was capable and
answered questions appropriately, and he was not forthcoming
with medical information aside from what he already submitted
online. Tr. 308-309.
10, Black told Dr. Zachary that he had eaten food and, as a
result, he was unable to have his next injection. Tr. 1099.
His pain was 8/10 and he needed a medication refill. Tr.
1099. His urine drug screening was deemed non-compliant and
the pain management clinic discharged him from care. Tr.
August 7, 2014, Black visited a new pain management clinic
and saw A. Harris Basall, M.D., for an evaluation of his neck
and lumbar pain. Tr. 1295. Black reported doing reasonably
well under Dr. Zachary's care but was getting
significantly worse since stopping marijuana. Tr. 1295. He
had a pain level of 8/10. Tr. 1296. Dr. Basall ordered a
toxicology report before providing further care. Tr. 1297.
Thereafter, Dr. Basall prescribed a Duragesic pain patch. Tr.
September 30, 2014, Black saw Dr. Basall and stated that,
since he has been using his pain patch, his pain improved to
6/10. Tr. 1291.
October 7, 2014, Dr. Basall gave Black an epidural nerve root
block in his lumbar spine. Tr. 1289. Black reported 100
percent improvement on October 28. Tr. 1287. On November 25,
he reported having a 65% improvement and his pain was 4/10.
Tr. 1285. On December 3, Black received a second epidural
nerve root block. Tr. 1283. On December 24 he reported an 80%
improvement and his pain level was 3/10. Tr. 1281.
January 29, 2015, Black saw Dr. Basall and reported a pain
level of 8/10. Tr. 1279. Dr. Basall gave him an
intra-articular joint injection in his right hip on February
17 and Black reported a post-procedure pain level of 2. Tr.
1277. On February 25 he reported 100% improvement. Tr. 1275.
His pain was 6/10. Tr. 1275. Prolonged sitting, prolonged
standing, bending forward, and lifting heavy weight
exacerbated his pain. Tr. 1275. On April 22, at a follow-up
visit, he still had 95% improvement and his pain was 2/10.
Tr. 1271. On May 20, his right hip was good but he had low
back pain. Tr. 1268. His pain was 8/10 and he stated that he
had been without his pain patch for about three days. Tr.
30, 2015, Black visited Mark Stutzman, D.O., a family
practitioner, for a well visit. Tr. 1300. He was a current
every day smoker and had been for the past 30 years and he
engaged in moderate exercise with martial arts. Tr. 1302.
Upon exam, he appeared well, had no edema in his extremities
or focal neurological deficits, had normal sensation,
coordination, muscle strength, and muscle tone, and appeared
mildly anxious with a normal mood, normal attention span, and
normal concentration. Tr. 1303. Dr. Stutzman prescribed a
fentanyl patch. Tr. 1303.
21, 2015, Black was supposed to have an injection but, when
he arrived, he told Dr. Basall that he had eaten and,
therefore, could not have the injection. Tr. 1263. Dr. Basall
commented that this is the second time Black had done this,
that Black had been told many times not to eat prior to an
injection, that Black left the clinic but returned, at which
point Dr. Basall explained the situation to him again with
security officers present, and then discharged Black from
care. Tr. 1263.
September 2, Black saw Dr. Stutzman to discuss tobacco
cessation and chronic pain control. Tr. 1305. He wanted to
transition away from his injections from pain management, as
they provided minimal benefit, and wean off opioid therapy at
pain management. Tr. 1305. He was currently intermittently
wearing his fentanyl patch. Tr. 1305. Upon exam, he had a
normal mood and affect and a normal attention span and
concentration. Tr. 1307. Dr. Stutzman adjusted his medication
to taper off opioids and prescribed medication and nicotine
gum for smoking cessation. Tr. 1307.
September 16, Black had stopped wearing his fentanyl patch
and Dr. Stutzman prescribed Tramadol for his pain. Tr.
1313-1314. As Dr. Stutzman expected, Black reported opioid
withdrawal symptoms of insomnia, anxiety, and tremors that
lasted about a week. Tr. 1311. Upon exam, he had a normal
mood and affect, and normal attention span and concentration.
Tr. 1313. On September 30, Black reported that the Tramadol
did cause some benefit and allowed him to improve his
function; however, in order to still do the things he would
like to do, he had to take oxycodone. Tr. 1316. He reported
right hip pain due to possible osteoarthritis. Tr. 1316. He
rated his pain 6/10. Tr. 1319. Dr. Stutzman prescribed a
trial of morphine to continue the process of weaning off
opioids. Tr. 1316.
October 8, 2015, Black saw Dr. Stutzman for a routine
follow-up of his chronic pain syndrome. Tr. 1325. He still
had pain but said that he could function with medication and
was interested in a formal exercise program. Tr. 1325. Upon
exam, he sat comfortably on the examination table, had a
normal mood and affect, and was cooperative. Tr. 1325. He
rated his pain (lower back, hip) a 5/10. Tr. 1328.
October 13, 2015, Black told a physical therapist that he
aggravated his back helping a friend move and putting up a
deer stand. Tr. 1376. He helped take care of his grandson,
including taking him to school and sport functions. Tr. 1376.
His pain made it difficult to complete activities of daily
living, take care of his grandson, and hunt. Tr. 1376. He
reported that a cortisone shot in his right hip worked for
about 5 months but had now worn off, and he had a TENS
machine and a heating pad that he could use at home for pain.
Tr. 1376. He rated his back pain level a 7 and his right hip
pain level a 3. Tr. 1379. He attended six sessions and was
discharged in November 4, 2015, with an overall improvement
of 100%. Tr. 1331, 1331. He could sit through church without
having to get up, he was getting up into a tree stand easily,
and he was sleeping well. Tr. 1331. He met his goal of a pain
level of 4/10. Tr. 1331. He was going to continue with pool
therapy at the YMCA. Tr. 1332.
next day, Black explained to Dr. Stutzman that he had
participated in physical therapy because, three weeks prior,
he injured his back while pulling on a bowstring. Tr. 1333.
He experienced significant relief from his therapy and he
wanted to cease going so that he could save some visits for
later in the year, if necessary. Tr. 1333. His medication
regime provided significant relief and allowed him to
maintain good function. Tr. 1333. Upon exam, he sat
comfortably on the examination table, had a normal mood and
affect, and was able to transfer from sitting to standing
without significant difficulty. Tr. 1333. He had muscle
spasms and several tender points in his upper trapezius
muscles but no sign of leg weakness. Tr. 1333. He rated his
pain level as 5. Tr. 1336.
follow up appointment with Dr. Stutzman on February 5, 2016,
a drug screen was positive for opioids and marijuana. Tr.
1339. Black reported that medication provided significant
relief and allowed him to maintain good function. Tr. 1341.
He asked Dr. Stutzman to complete disability paperwork. Tr.
1341. He rated his back pain level at ¶ 6.5. Tr. 1343.
Upon exam, he had tenderness to palpation in his legs and
some muscle spasm. Tr. 1344. He had 4 strength in his
upper and lower extremities. Tr. 1344. He had a normal mood,
affect, attention and concentration. Tr. 1344. Dr. Stutzman
opined that Black had functional improvement with his pain
management regimen and commented that he would complete the
disability paperwork “as able.” Tr. 1344.
On April 7, 2014, Black visited the Counseling Center of
Wayne and Holmes Counties. Tr. 824. He had not been seen
since June 2013. Tr. 824. He was hearing voices, feeling
depressed and having anxiety. Tr. 825. His goal was to have
stability, have the voices go away, and be normal. Tr. 824.
He was diagnosed with posttraumatic stress disorder, major
depressive disorder, psychosis, NOS, alcohol dependence in
early remission, cannabis abuse, and a history of
polysubstance abuse. Tr. 828.
9, 2014, Black was hearing a demon's voice telling him to
do things and he complained that people were talking about
him. Tr. 1034. He had to leave WalMart the other day because
he got too panicky. Tr. 1034. He was homeless and had been
off medication for 9 months. Tr. 1035. Upon exam, he was
calm, friendly, had good eye contact, normal speech, good
concentration, memory, insight and judgment, a full affect,
logical thought process, and a mood that was close to
euthymic. Tr. 1034-1035. He was started on Seroquel. Tr.
12, he reported hearing several voices and stated that he had
been hearing them since he was in his 20s. Tr. 1032. Seroquel
had not improved this problem. Tr. 1032. Black reported using
marijuana until three months prior. Tr. 1032. He suffered
from chronic pain, all day every day, ...