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Hoffman v. Commissioner of Social Security Administration

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

July 24, 2019


          Judge Dan Aaron Polster


          James R. Knepp II United States Magistrate Judge


         Plaintiff 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.

         Procedural Background

         Plaintiff 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).

         Factual Background[1]

         Personal Background and Testimony

         Plaintiff 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. 226).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Relevant Medical Evidence

         Plaintiff 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.

         Plaintiff 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.

         Dr. 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.

         Plaintiff 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.

         Dr. 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).

         A 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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. 493-94).

         Plaintiff 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.

         Plaintiff 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).

         In 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.

         At a 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 ...

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