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Black v. Commissioner of Social Security Administration

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

June 27, 2018

ACIE BLACK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION & ORDER

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         For the reasons set forth below, the Commissioner's decision is AFFIRMED.

         I. Procedural History

         Black 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.

         II. Evidence

         A. Personal and Vocational Evidence

         Black 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.

         B. Relevant Medical Evidence

         Physical: 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. 95-108.

         On 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.

         On 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.

         At a 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. 705.

         On 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.

         On 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.

         On May 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.

         On June 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.

         On June 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.

         On July 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. 1100.

         On 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. 1293.

         On 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.

         On 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.

         On 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. 1268.

         On June 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.

         On July 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.

         On 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.

         By 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.

         On 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.

         On 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.

         The 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.

         At a 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.

         Mental: 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.

         On May 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. 1035.

         On June 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, ...


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