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Urich v. Commissioner of Social Security

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

May 30, 2019

LISA A. URICH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES G. CARR JUDGE.

          REPORT AND RECOMMENDATION

          James R. Knepp II United States Magistrate Judge.

         Introduction

         Plaintiff Lisa Urich (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). This matter has been referred to the undersigned for preparation of a report and recommendation pursuant to Local Rule 72.2. (Non-document entry dated April 20, 2018). Following review, and for the reasons stated below, the undersigned recommends the decision of the Commissioner be reversed and remanded for further proceedings.

         Procedural Background

         Plaintiff filed for DIB in May 2013, alleging a disability onset date of October 10, 2012. (Tr. 317-19). Her claims were denied initially and upon reconsideration. (Tr. 175-78, 180-82). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 189-90). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on June 9, 2015. (Tr. 76-106). On August 19, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 138-55). On October 26, 2016, the Appeals Council remanded the decision for further consideration of medical opinion evidence, and the inclusion of new material evidence. (Tr. 163-64).

         Plaintiff (again represented by counsel), and a vocational expert (“VE”) testified at a second hearing before the ALJ on February 15, 2017. (Tr. 42-75). On May 10, 2017, the ALJ found Plaintiff not disabled in a written decision. (Tr. 11-28). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 2-4); see 20 C.F.R. §§ 404.955, 404.981. Plaintiff timely filed the instant action on April 20, 2018. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Plaintiff was born in 1966 making her 46 years old on her alleged onset date. See Tr. 49. Plaintiff had past work in inventory management for Walmart. (Tr. 53). There, she lifted and pulled approximately 50 to 100 pounds at a time. (Tr. 53, 85). Plaintiff left Walmart due to pain in her back. (Tr. 53-54). She also had past work as a licensed practical nurse. (Tr. 54, 84).

         2015 Hearing

         Plaintiff believed she could no longer work due to back pain. (Tr. 87). She took prescription pain medications to control the pain and received injections. Id. Plaintiff testified the injections did “not really” help relieve her pain, because they provided only short-term relief. Id. Plaintiff described the lower back pain as “constant” and it radiated down her sides to her hips. (Tr. 88). Plaintiff had a lumbar fusion in 2012 which she believed “actually made the symptoms worse than better.” (Tr. 89). She also had pain in her shoulders and neck (Tr. 88), and numbness and tingling in her hands (Tr. 97).

         Plaintiff estimated she could walk one city block, stand in one place for approximately fifteen minutes, and sit for approximately 20-25 minutes without changing positions. (Tr. 89). She had trouble pushing and pulling due to shoulder pain. Id. Plaintiff could not lift or carry more than ten pounds. (Tr. 90).

         In a typical day, Plaintiff “slept in”, watched television, and watched her grandchildren play. Id. Plaintiff did not babysit her grandchildren because she could not lift them without “very bad” back pain. (Tr. 96-97). She could sometimes help with the dishes, but it took her “a while”. (Tr. 90). Her daughter cleaned Plaintiff's home and did her laundry. Id. Plaintiff's husband did the grocery shopping and she went with him approximately once per month but did not carry anything. (Tr. 91). Her husband cooked their meals id., and cared for their three dogs (Tr. 93).

         2017 Hearing

         Plaintiff believed she could no longer work due to back pain which radiated to her legs, neck pain, carpal tunnel syndrome, and numbness in her fingers. (Tr. 54-56). Plaintiff also had bipolar disorder. (Tr. 57-58).

         Plaintiff lived in a two-story home. (Tr. 49). She had two adult children and two grandchildren (all living outside of the home). (Tr. 49-50). She saw her grandchildren “every other day” but did not babysit them. (Tr. 50, 58-59). Plaintiff could not pick up her infant grandchild due to back pain. (Tr. 58).

         Plaintiff had a driver's license and drove a few times per week “for short periods”. (Tr. 51). During an average day, Plaintiff sat in her recliner and napped until her daughter and grandchildren came over in the afternoon. (Tr. 59-60). Plaintiff estimated she could stand for approximately ten to fifteen minutes at a time and sit for 20-25 minutes. (Tr. 61-62). She could not lift more than ten pounds with both hands. (Tr. 62). She had trouble buttoning and could not open a bottle of water due to numbness in her fingers. (Tr. 63). Plaintiff could not wash her hair due to shoulder pain and did not perform any household chores. (Tr. 63-64).

         Relevant Medical Evidence[1]

         Physical Impairments

         In October 2012, Plaintiff underwent a decompressive laminectomy with a posterior lumbar interbody fusion, posterior non-segmental instrumentation, and an insertion of an intervertebral device. (Tr. 472). At a post-operative visit later in October with orthopedist J. Andrew Huddleston, D.O., Plaintiff reported general improvement, had 6/10 pain, tolerated her pain medication well, and was “full weight bearing” without any assistive devices. (Tr. 537). At a November post-operative visit, Plaintiff reported 7/10 pain with a “fair” response to her pain medication. (Tr. 539). She remained “full weight bearing” with no assistive devices, but Dr. Huddleston listed her work status as “no work/activity”. Id.

         Plaintiff had a third post-operative visit with Dr. Huddleston in January 2013. (Tr. 541-43). She reported “constant” 5/10 pain. Id. On examination, Plaintiff had “acceptable” range of motion, normal muscle strength, normal gait, and diffuse tenderness over the lumbar spine. (Tr. 542). Dr. Huddleston instructed her to avoid heavy lifting for three months. (Tr. 543).

         Later in January 2013, Plaintiff saw Diana Rodriguez, C.N.P., a nurse practitioner at a neurology clinic, for lumbar back pain. (Tr. 586). Plaintiff reported pain at ¶ 5/10. Id. On examination, Plaintiff had a normal gait, and normal sensation. (Tr. 588). Ms. Rodriguez prescribed pain medication. (Tr. 589).

         In February 2013, Plaintiff saw John Hughes, M.D., for, inter alia, back pain. (Tr. 602-04). On examination, Plaintiff had normal range of motion in all joints. (Tr. 604). Later that month, Plaintiff had a normal MRI of the upper spine (Tr. 1164), and an MRI of the lower spine which showed intact hardware and post-operative erosion of the inferior L5 vertebral body. (Tr. 527). A thoracic x-ray revealed mild degenerative changes in the mid-dorsal spine. (Tr. 1165).

         In April 2013, Plaintiff saw neurologist Brendan Bauer, M.D., for continued lumbar back pain that she rated as 8/10. (Tr. 558). She also reported left leg numbness and tingling. Id. Dr. Bauer assessed lumbar radiculopathy due to degenerative disc disease. (Tr. 561).

         Plaintiff had a final post-operative visit later in April 2013. (Tr. 544). She reported 5/10 pain in her lower back which radiated to her left buttock. Id. Her pain was aggravated by bending, standing, walking, and riding in a car. Id. Dr. Huddleston told Plaintiff to return as needed. (Tr. 546).

         Plaintiff saw Dr. Bauer again in April 2013. (Tr. 699-700). She reported a February 2013 lumbar injection provided immediate relief, and she continued to have no pain on her right side for approximately two weeks thereafter. (Tr. 700). Plaintiff's left side had “minimal relief” following the injection however. Id. She rated her left-side pain at 8/10 immediately following the injection. Id.

         In October 2013, Plaintiff saw Dr. Bauer for continued lumbar pain, pain between her shoulders, and bilateral arm weakness. (Tr. 695). On examination, Plaintiff had decreased sensation in both legs and positive straight leg raises. (Tr. 696). A lumbar spine x-ray the following day was unremarkable. (Tr. 710). Plaintiff also underwent an MRI that month, which revealed minimal thoracolumbar spondylosis. (Tr. 1154). Finally, Plaintiff underwent a nerve conduction study that same month which revealed carpal tunnel syndrome and moderate bilateral cervical motor radiculopathies. (Tr. 1151).

         Plaintiff had a lumbar epidural injection in January, and cervical epidural injections in March, and July of 2014. See Tr. 1531, 1533, 1536.

         In January 2014, Plaintiff saw Dr. Hughes for a chest cold, reporting only respiratory symptoms. (Tr. 732-33). In February, Plaintiff treated at the emergency room for chest pain which radiated to her back. (Tr. 875). Providers found normal strength in all extremities and opined her chest pain was musculoskeletal. (Tr. 877).

         Plaintiff returned to Dr. Bauer in March 2014 because her most recent cervical epidural injection did not relieve her pain. (Tr. 1509). On examination, Plaintiff had a normal gait and normal strength in all extremities, but had positive straight leg raises bilaterally. (Tr. 1511). Dr. Bauer observed absent reflexes in her hands and legs. (Tr. 1511-12). He noted Plaintiff's cervical disc disease was worsening and epidural injections did not provide relief. (Tr. 1512).

         In April 2014, Plaintiff saw Dr. Hughes for a rash/allergic reaction. (Tr. 1075). Plaintiff also had complaints of joint and back pain. (Tr. 1076). She had a normal physical examination. (Tr. 1075-77).

         A July 2014 x-ray of Plaintiff's right shoulder revealed calcification adjacent to the humeral head, suggesting calcific tendinosis. (Tr. 1062).

         Plaintiff returned to Dr. Bauer's office in August 2014, seeing Ms. Rodriguez. (Tr. 1500-03). Plaintiff reported 5/10 back pain. (Tr. 1500). On examination, Plaintiff had normal strength in her extremities and normal gait. (Tr. 1502). In September, Plaintiff reported to Dr. Bauer that her lower back pain increased significantly to 8/10, and she had difficulty with ambulation. (Tr. 1526). Dr. Bauer performed a lumbar epidural injection. (Tr. 1527-28). In October, Plaintiff reported the injection did not work and she continued to have lower back pain. (Tr. 1496). Further, she reported burning and aching in her hips at night. Id. Ms. Rodriguez prescribed additional pain medications. (Tr. 1498).

         In January 2015, Plaintiff saw Dr. Hughes for a leg rash but otherwise reported feeling ...


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