United States District Court, N.D. Ohio, Eastern Division
Y. PEARSON JUDGE.
REPORT AND RECOMMENDATION
Jonathan D. Greenberg United States Magistrate Judge.
Willie Dee Owens, (“Plaintiff” or
“Owens”), challenges the final decision of
Defendant, Nancy A. Berryhill,  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 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.
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.)
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.
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.)
Personal and Vocational Evidence
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.)
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.)
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.)
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.)
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.
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.
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.)
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,
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.
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.)
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.)
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.)
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.
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.
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.
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.)
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.
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.)
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.)
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.
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.)
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.
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.