United States District Court, N.D. Ohio, Eastern Division
ROBERT A. HOFFMAN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Dan Aaron Polster
REPORT AND RECOMMENDATION
R. Knepp II United States Magistrate Judge
Robert A. Hoffman (“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 September 17, 2018).
Following review, and for the reasons stated below, the
undersigned recommends the decision of the Commissioner be
reversed and remanded for further proceedings.
filed for DIB in January 2016, alleging a disability onset
date of March 15, 2009. (Tr. 198-99). His claims were denied
initially and upon reconsideration. (Tr. 111-13, 119-21).
Plaintiff then requested a hearing before an administrative
law judge (“ALJ”). (Tr. 126-27). Plaintiff
(represented by counsel), and a vocational expert
(“VE”) testified at a hearing before the ALJ on
October 25, 2017. (Tr. 32-73). On February 12, 2018, the ALJ
found Plaintiff not disabled in a written decision. (Tr.
11-25). The Appeals Council denied Plaintiff's request
for review, making the hearing decision the final decision of
the Commissioner. (Tr. 1-3); see 20 C.F.R.
§§ 404.955, 404.981. Plaintiff timely filed the
instant action on September 17, 2018. (Doc. 1).
Background and Testimony
was born in 1979, making him 38 years old at the time of the
hearing. See Tr. 222. Plaintiff alleged disability
due to back injuries, the inability to sit or stand for
lengthy periods, nerve damage in both legs, memory problems,
anxiety, depression, and limited use of his right hand. (Tr.
had past work as a carpenter. (Tr. 37, 39-40). He believed he
could no longer work due to problems with his right hand and
persistent back pain which impaired his ability to walk. (Tr.
51). Plaintiff sustained a workplace injury to his lower back
in 2006 while employed as a carpenter for a flooring company.
See Tr. 50. He returned to work following the
injury. (Tr. 51).
had four back surgeries and was due for a fifth later in
2017. (Tr. 44). Plaintiff was “optimistic”
following his second surgery and believed he could
“bounce right back” leading him to “push
[himself] a little harder than [he] should've” in
therapy. (Tr. 65). Plaintiff further believed he was not
properly supervised during physical therapy due to staffing
issues. (Tr. 65-66). He had some relief following surgery,
but “twist[ed] the wrong way” during an exercise
and reaggravated the injury. (Tr. 47).
described his pain as “constant”. (Tr. 47). He
was unable to bend down and grab objects and had difficulty
reaching. Id. Plaintiff could not lay flat on his
back or flat on his stomach. (Tr. 48).
had a normal lumbar spine x-ray in April 2009. (Tr. 729). In
October 2010, an MRI revealed a “fairly massive disc
extrusion” extending caudally from the interspace level
and marked compression of the thecal sac and of the nerve
root sleeves bilaterally. (Tr. 399). There was also
“prominent” disc degeneration at the L4-L5 and
L5-S1 levels and a central bulging disc at the L4-L5 level
with an associated annular tear. Id.
began treating with Louis Keppler, M.D., in May 2011. (Tr.
313). At his first visit, Plaintiff complained of low back
pain, right leg radiculopathy, and right leg weakness.
Id. Plaintiff had these symptoms since 2006, but
they worsened over the past year. Id. Plaintiff had
10/10 pain, worse with sitting, walking, standing, lying
down, coughing, and lifting. Id. Physical therapy
and cortisone injections did not relieve the pain.
Id. Dr. Keppler recommended surgery. Id.
Keppler performed a posterior lumbar interbody fusion with a
plate at ¶ 5-S1 in June 2011. See Tr. 314.
Approximately two weeks after the surgery, Plaintiff saw Dr.
Keppler and was “doing great”. (Tr. 316). At an
August 2011 follow-up, Plaintiff was “doing well”
and Dr. Keppler noted his wound was healing well with no
redness or swelling. (Tr. 317). In September, Dr. Keppler
observed Plaintiff was making slow progress. (Tr. 318). His
preoperative back and leg pain improved, but he still had
residual back pain and numbness in his legs. Id. Dr.
Keppler advised Plaintiff to avoid any activity which
increased his pain level. Id. In January 2012,
Plaintiff was doing “reasonably well”, but was
still sore. (Tr. 320). Dr. Keppler noted Plaintiff's
recent x-rays looked “excellent”. Id.
returned to Dr. Keppler in May 2012 “in severe
pain”. (Tr. 322). Dr. Keppler believed Plaintiff's
fusion was consolidating at ¶ 5-S1, and his adjacent
level condition may have progressed. Id. He
recommended an MRI. Id. Plaintiff returned two weeks
later “leaning forward” while walking and
“holding onto the furniture to get in and out of the
office.” (Tr. 323). Plaintiff complained of
“severe aggravation” of his back pain, and pain
and swelling in his lower extremities. Id. Dr.
Keppler found some foraminal narrowing associated with
further degeneration at ¶ 4. Id. He noted the
prior fusion at ¶ 5-S1 looked “good”.
Id. Dr. Keppler recommended surgery, believing
Plaintiff's fusion needed to be extended to the L4 level.
Id. Dr. Keppler also noted the possibility of more
conservative treatments such as lumbar blocks. Id.
Keppler performed a bilateral paraspinal injection (facet
area) at ¶ 4-L5 in July 2012. (Tr. 341). Plaintiff
underwent an operation in September 2012 to remove
“painful hardware” in his back. (Tr. 294).
November 2012 lumbar CT scan revealed a moderate to severe
broad-based central/paracentral disc bulge at ¶ 4-L5.
(Tr. 305). There was moderate canal stenosis at this level
with moderate to severe foraminal narrowing. Id. At
¶ 3-L4, Plaintiff had a mild broad-based
central/paracentral disc bulge with moderate canal stenosis
and neural foramina present. Id. Additionally, at
¶ 1-L2, Plaintiff had a mild to moderate broad-based
left foraminal/extraforaminal disc bulge. Id.
returned to Dr. Keppler in December 2012 with
“significant” back pain, but less leg pain. (Tr.
330). He ambulated with a cane. Id. Dr. Keppler
believed Plaintiff's L4-L5 condition had worsened.
Id. Plaintiff had stenosis at ¶ 4-L5, above the
level of his prior fusion. Id. He also had herniated
discs both at ¶ 4 and L5, for which Dr. Keppler
recommended surgery. Id.
began treatment at the Cleveland Back and Pain Management
Center in May 2013. See Tr. 495. Plaintiff reported
muscle weakness and pain in his joints and back. (Tr. 496).
Providers found he had an antalgic gait and ambulated with a
cane. (Tr. 497). He had reduced muscle strength and
diminished reflexes in both legs. Id. Plaintiff also
had limited range of motion in his lumbar spine. Id.
had a June 2013 pre-operative appointment with Dr. Keppler.
(Tr. 331). Dr. Keppler noted Plaintiff walked “slightly
bent forward”, ambulated with a cane, and was
“very stiff”. Id. On examination,
Plaintiff could bend forward and bring his fingertips to the
proximal pole of his patella. Id. He could assume an
upright position with a slight reversal of spinal rhythm with
his knees flexed. Id. At a pain center visit in that
same month, Plaintiff had limited range of motion in his
lumbar spine, decreased motor strength in both legs, and
positive straight leg tests (seated and supine). (Tr.
underwent an extreme lateral interbody fusion at ¶ 4
with Dr. Keppler in July 2013. (Tr. 337). At a post-operative
appointment in late July, Plaintiff still had “a
lot” of pain, and described “burning” in
his left anterior thigh. (Tr. 332). Dr. Keppler noted
Plaintiff's x-rays looked “good”, and his
incisions were well healed. Id.
returned to the pain center in late July, following his
operation. (Tr. 486). Providers noted Plaintiff had an
antalgic gait and ambulated with a cane. Id. He had
tenderness throughout his lumbar spine and normal motor
strength in both legs. (Tr. 486-87). Plaintiff also had
bilateral negative seated straight leg tests and positive
supine straight leg tests. (Tr. 487).
September 2013, Plaintiff had a “typical side
ache” and some difficulty with hip flexion. (Tr. 333).
Dr. Keppler instructed Plaintiff to build his endurance by
walking. Id. In October 2013, Dr. Keppler wrote a
letter to Anthony Wyras, M.D., summarizing Plaintiff's
post-operative progress. (Tr. 334). He described
Plaintiff's condition as “longstanding” with
“adaptive patterns of walking” and noted he was
“kinesiophobic”. Id. At a pain clinic
visit later that month, Plaintiff reported back pain and
swelling in his extremities. (Tr. 467). The provider noted he
walked with a limp, had an antalgic gait, and ambulated with
a cane. (Tr. 468). Plaintiff had normal motor strength in
both legs, but diminished reflexes and positive seated
straight leg tests bilaterally. Id.
November 2013 pain center visit, Plaintiff reported general
muscle aches and weakness with back pain and swelling in his
extremities. (Tr. 463). He walked with a limp, had an
antalgic gait, and ambulated with a cane. (Tr. 464). He again
had normal motor strength in both legs, but diminished
reflexes, limited range of motion in his lumbar spine, and
positive seated straight ...