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Owens v. Berryhill

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

February 13, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Willie Dee Owens, (“Plaintiff” or “Owens”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his application for a Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before[2] the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.


         In September 2014, Owens filed an application for POD and DIB, alleging a disability onset date of January 31, 2014 and claiming he was disabled due to lumbar stenosis, bulging discs, lower back pain, and pain in his legs and feet. (Transcript (“Tr.”) 158, 201.) The applications were denied initially and upon reconsideration, and Owens requested a hearing before an administrative law judge (“ALJ”). (Tr. 107, 115, 122.)

         On June 16, 2016, an ALJ held a hearing, during which Owens, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 38.) On June 1, 2017, the ALJ issued a written decision finding Owens was not disabled. (Tr. 12-28.) The ALJ's decision became final on March 2, 2018, when the Appeals Council declined further review. (Tr. 1.)

         On May 4, 2018, Owens filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 11, 13, 14.) Owens asserts the following assignments of error:

(1) The ALJ erred by failing to develop the record to obtain an opinion of Plaintiff's functioning following his back surgery and diagnosis of carpal tunnel syndrome, rendering his RFC determination unsupported by substantial evidence.

(Doc. No. 11.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Owens was born in October 1969 and was 46 years-old at the time of his administrative hearing, making him a “younger individual” under social security regulations. (Tr. 87.) See 20 C.F.R. §§ 404.1563(c). He has a limited education and is able to communicate in English. (Tr. 92.) He has past relevant work as a circuit board assembler, packager, and material handler. (Tr. 23.)

         B. Medical Evidence[3]

         On April 1, 2013, Owens visit physicians' assistant Alfred J. Melillo, PA-C, reporting lower back pain radiating into his legs since an August 2012 motor vehicle accident. (Tr. 238.) On examination, Owens' gait was without ataxia or antalgia. (Tr. 239.) He had pain with range of motion and tenderness in his lower lumbar spine and bilateral SI joints. (Id.) He was able to walk on his heels and toes, squat and stand without difficulty, and had full strength in his hips and knees. (Id.) Mr. Melillo reviewed Owens' recent lumbar MRI, which revealed L4-5 and L5-S1 foraminal narrowing and facet joint hypertrophy, with foraminal narrowing at ¶ 5-S1. (Tr. 242.) Mr. Melillo referred Owens for injections and advised him to take ibuprofen as needed. (Id.)

         Owens underwent a left-sided L4-5 medial branch block injection on April 10, 2013 and a lumbar steroid injection on May 6, 2013. (Tr. 245, 285.) On June 10, 2013, Owens visited pain management physician Edwin Capulong, M.D., reporting 50% relief from the injections. (Tr. 281.) On examination, Owens had pain to palpation in his spine, full strength in his legs, and a negative straight leg raise. (Tr. 282.) His gait was non-antalgic and his toe and heel walking were normal. (Tr. 283.) Dr. Capulong prescribed Gabapentin. (Id.)

         Owens returned to Dr. Capulong on February 18, 2014, reporting he was “better by 100%” since his car accident. (Tr. 316.) On examination, Owens was ambulatory, with full strength in his upper and lower extremities and no pain to palpation in his paraspinals. (Tr. 317.) Dr. Capulong concluded Owens was “better overall” and refilled his Neurontin. (Id.)

         On June 2, 2014, Owens visited Dr. Capulong, reporting worsening back pain after sustaining a lifting injury 3-4 days prior. (Tr. 249.) On examination, Owens had pain to palpation in his spinous process and paraspinals, with tenderness in his lumbar spine. (Tr. 251.) Dr. Capulong prescribed a course of steroids and Flexeril. (Tr. 252.) Owens returned to Dr. Capulong on June 27, 2014, indicating the steroids provided no relief and his back pain was worsening. (Tr. 255.) His pain was worse with standing and walking and relieved by sitting. (Id.) On examination, Owens' gait was non-antalgic, with normal heel and toe walking. (Tr. 257.) He had pain to palpitation in his paraspinals and tenderness in his thoracolumbar spine. (Id.) Dr. Capulong ordered an MRI and increased Owens' Neurontin dosage. (Id.)

         A July 2, 2014 lumbar MRI revealed: (1) stable degenerative disc disease in the lower lumbar spine; (2) no focal protrusion or extrusion; and (3) stable mild to moderate neural foraminal stenosis at ¶ 3-4 through L5-S1. (Tr. 340.) Dr. Capulong reviewed these results with Owens on July 18, 2014. (Tr. 261.) Owens indicating difficulty walking and standing, with shooting pains down his legs. (Id.) On examination, Owens had full strength in his legs, normal muscle tone, and a non-antalgic gait. (Tr. 263.) His toe and heel walking were within normal limits. (Id.) Dr. Capulong referred Owens for another injection and a surgical evaluation. (Id.)

         Owens thereafter underwent a bilateral SI transforaminal injection on August 7, 2014. (Tr. 306.) He followed up Dr. Capulong on September 11, 2014, reporting daily pain. (Tr. 232.) On examination, Owens had an antalgic gait, but a stable neurologic examination. (Tr. 232, 233.) Dr. Capulong advised Owens to hold off on any further injections and prescribed Tramadol and Gabapentin. (Tr. 233.)

         On November 7, 2014, Owens had a physical therapy evaluation with physical therapist Shawn Sutton, DPT. (Tr. 368.) He reported right leg numbness and left leg radiculopathy. (Id.) On examination, Owens had decreased range of motion in his spine and slightly decreased strength in his left hip. (Tr. 369.) His sensation and knee strength were intact. (Id.) Owens was unable “to formally spring test” due to pain and guarding and his “pain and self limiting impacted the completeness of [evaluation] procedures.” (Tr. 370.) Owens chose not to continue with physical therapy because he did not find it helpful or affordable. (Id.) Mr. Sutton advised Owens to obtain a TENS unit through his doctor. (Tr. 370, 372.)

         Owens visited the emergency room for an allergic reaction to his Tramadol on January 2, 2015. (Tr. 300, 302.) He returned to the emergency room on March 4, 2015, with right-sided neck pain. (Tr. 391.) An x-ray revealed no acute fracture, but multilevel degenerative changes in the cervical spine. (Tr. 394.)

         On March 10, 2015, Owens visited the emergency room for four days of left leg pain and numbness. (Tr. 395.) He was walking with crutches and reported he had fallen. (Tr. 396, 398.) X-rays revealed stable lumbosacral spine degenerative joint disease. (Tr. 398.) The emergency room physicians prescribed Norflex and Toradol. (Tr. 397.)

         Owens subsequently underwent a lumbar laminectomy and decompression on August 28, 2015. (Tr. 346.) Following this procedure, Owens began a course of physical therapy on November 24, 2015. (Tr. 403.) He indicated he was still having sharp, shooting pains and his legs had been buckling due to weakness. (Id.) He was ambulating with a cane. (Id.) On examination, Owens had a decreased spinal range of motion, decreased strength in both legs, impaired mobility, decreased flexibility, and decreased bilateral lower extremity strength. (Tr. 404, 405.) The examining physical therapist, Tracy Jenneman, SPT, recommended physical therapy 2-3 times a week for 6-8 weeks. (Tr. 405.)

         Owens attended physical therapy throughout December 2015. (Tr. 408, 409, 410.) During his therapy sessions, he had difficulty using stairs and continued leg numbness. (Tr. 408, 409, 410, 414.) On December 16, 2015, Owens was “slightly better” since his operation and was tolerating increased exercise repetitions in therapy. (Tr. 410.) On December 22, 2015, Owens displayed leg weakness, but he was able to complete all his physical therapy exercises and demonstrated decreased pain with seated chair flexion. (Tr. 414.) By December 29, 2015, Owens' strength was improving. (Tr. 415.)

         On December 22, 2015, Owens visited surgeon Matthew Levy, M.D., for a consultation regarding hand pain. (Tr. 411.) He reported increasing hand pain over the past year with numbness and tingling in all of his fingers. (Id.) Owens relayed while the pain was intermittent in nature, it would become severe enough on occasion that he would have trouble using a door handle. (Id.) On examination, Owens was ambulating with a cane. (Id.) He had good range of motion in his cervical spine, no atrophy in his hands, and good grip and pinch strength. (Id.) Dr. Levy advised Owens he needed therapy and ordered an EMG. (Tr. 412.)

         Owens continued to attend physical therapy for his back in January 2016. On January 8, 2016, Owens' legs felt stronger overall, but he had a recent fall and difficulty sleeping due to pain. (Tr. 422.) His balance and gait speed were improved on January 13, 2016. (Tr. 423.) On January 15, 2016, Owens was displaying gains in strength, but leg fatigue with exertion. (Tr. 424.) He was tolerating longer physical therapy sessions with increased weight and repetitions. (Id.)

         On January 22, 2016, Owens reported he was experiencing pain 50% of the day and the numbness in his feet had become prominent. (Tr. 425.) During his physical therapy session on January 27, 2016, Owens displayed weakness while climbing a flight of stairs and his leg pain was more frequent. (Tr. 426.) Owens reported an episode of intense lower back pain on January 29, 2016. (Tr. 430.) He was able to increase his leg press weight to 60 pounds, but displayed weakness on examination. (Id.)

         On January 27, 2016, Owens underwent an occupational therapy evaluation for his bilateral hand pain and weakness. (Tr. 427.) His sensation was intact and he had a normal range of motion in his hands and fingers. (Id.) His grip strength was decreased and his 9-hole peg test and his pinch strength were abnormal. (Tr. 427, 428.) The occupational therapist, Nicole McHale, OT, issued Owens a pair of bilateral wrists splints to wear at night. (Tr. 428.)

         In February 2016, Owens attended both physical therapy for his back and occupational therapy for his hands. On February 3, 2016, Owens was ambulating with a slow gait and cane. (Tr. 431.) He reported relief from his exercises on February 11, 2016. (Tr. 432.) During his February 18, 2016 occupational therapy session he was able to complete several manipulative tasks with minimal difficulty, including using a screwdriver. (Tr. 435.) However, he voiced complaints of weakness. (Id.)

         During his February 23, 2016 occupational therapy visit, his EMG results were reviewed. (Tr. 437.) The testing confirmed moderate carpal tunnel syndrome on the right side and mild carpal tunnel syndrome on the left. (Id.) He again was able to complete several manipulative tasks without difficulty, but he continued to report fatigue. (Id.) His occupational therapist observed Owens was making “good gains.” (Id.) On March 10, 2016, he denied any pain during occupational therapy and continued to make gains in strength. (Tr. 438.)

         Owens attended his seventeenth visit of physical therapy for his back on March 10, 2016. (Tr. 439.) He displayed difficulty using stairs and leg weakness. (Id.)

         On May 8, 2016, Owens presented to the emergency room with right leg pain radiating into his feet. (Tr. 451.) The emergency room physicians provided him with steroids, Norflex, and Toradol. (Tr. 452.)

         On May 10, 2016, Owens' back surgeon, Nicholas Ahn, M.D., called Owens to review his recent lumbar MRI results. (Tr. 457.) The updated MRI demonstrated no evidence of significant nerve compression or stenosis. (Id.) Dr. Ahn advised Owens he likely had neuritis, developed after a fall when he was recovering from surgery. (Id.) Dr. Ahn recommended lumbar epidural injections and concluded further surgery was not appropriate. (Id.)

         Owens returned to Dr. Levy on May 10, 2016, reporting his hand pain continued to be severe in nature. (Tr. 454.) On examination, Owens had full range of motion in his wrists, finger extension, and finger abduction. (Tr. 456.) He had diminished grip strength. (Id.) Dr. Levy referred Owens for further occupational therapy, advising Owens they would discuss surgery if he exhibited no improvement from therapy. (Id.)

         On May 23, 2016, Owens began another course of physical therapy for his lumbar spine. (Tr. 461.) He reported bilateral leg pain and foot paresthesia. (Id.) On examination, Owens had decreased leg strength and a decreased spinal range of motion. (Tr. 462.) He had no “major gait deviations.” (Id.) His physical therapy evaluation was limited secondary to pain. (Id.) The physical therapist, Shawn Sutton, PT, noted Owens' history of noncompliance and lack of success from therapy. ...

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