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Easton v. Saul

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

September 9, 2019

JOYCE ANITA EASTON, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          JAMES S. GWIN, JUDGE

          REPORT AND RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Joyce Easton, (“Plaintiff” or “Easton”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 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 VACATED and REMANDED for further consideration consistent with this opinion.

         I. PROCEDURAL HISTORY

         In May 2015, Easton filed an application for DIB and SSI, alleging a disability onset date of September 11, 2010, [2] and claiming she was disabled due to back problems, high blood pressure, blurred vision, arthritis, anxiety, and depression. (Transcript (“Tr.”) 24, 31.) The applications were denied initially and upon reconsideration, and Easton requested a hearing before an administrative law judge (“ALJ”). (Tr. 129, 144, 163, 180, 211.)

         On October 24, 2017, an ALJ held a hearing, during which Easton, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 24.) On December 27, 2017, the ALJ issued a written decision finding Easton was not disabled. (Tr. 36.) The ALJ's decision became final on April 27, 2018, when the Appeals Council declined further review. (Tr. 6.)

         On October 2, 2018, [3] Easton filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 16, 21, 22.) Easton asserts the following assignments of error:

(1) The ALJ abused his discretion by not accepting [P]laintiff's prior counsel's submission of evidence on the basis that it was not timely filed. This is also an error of law requiring remand. This issue appears to be a case of first impression under the new regulations regarding the 5-day rule. A[s] such, this is a broad procedural issue that affects the public interest.
(2) The ALJ's Decision is not supported by substantial evidence as the ALJ erred by not considering that there was a change in [P]laintiff's impairments once the pedicle screws broke in her back, coupled with her leg and edema problems, her cardiovascular issues and her fatigue.
(3) The ALJ's Decision is not supported by substantial evidence as the ALJ erred by failing to provide an analysis of the treating source criteria required under 20 C.F.R. § 404.1527, § 416.927 and Social Security Ruling 96-2p.

(Doc. No. 16.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Easton was born in May 1971 and was 46 years-old at the time of her administrative hearing (Tr. 48), making her a “younger” person under social security regulations. See 20 C.F.R. §§ 404.1563(c) & 416.963 (c). She has at least a high school education and is able to communicate in English. (Tr. 35.) She has past relevant work as a certified nurse's aide and caregiver. (Id.)

         B. Medical Evidence[4]

         1. Physical Impairments[5]

         In 2011, Easton was diagnosed with spinal stenosis and disc herniation. She underwent a back fusion on November 9, 2011, with laminectomy, microdiscectomy, bone extender, and bilateral pedicle screw fixation. (Tr. 590, 813-14.) Easton received “good relief” from her symptoms after surgery. (Tr. 411.)

         In 2012, Easton complained of low-back pain along with left hip pain and began treating at a pain clinic. Treatment included left sacroiliac injections in April 2012 and February 2013. (Tr. 411, 569-71.)

         On March 11, 2013, Easton underwent a radio frequency (“RF”) procedure of her sacroiliac joint. She underwent a second RF procedure on May 24, 2013. (Tr. 405, 410.)

         On November 8, 2013, an MRI of Easton's lumbar spine revealed unremarkable post-surgical change and mild degenerative changes. (Tr. 428, 810.)

         A December 2013 physical examination at Doctors Pain Clinic revealed exam findings consisting of: (1) pain with palpation of the left sacroiliac joint; (2) decreased low-back range of motion; (3) significant muscle spasm in the low back; (4) intact sensation in the legs; (5) negative straight leg test; (6) full (5/5) strength in all muscle groups; and (7) normal gait. (Tr. 398-401.)

         On December 30, 2013, a left hip x-ray revealed mild-to-moderate degenerative change. (Tr. 427.)

         In January 2014, Easton underwent a left hip bursa injection at Doctors Pain Clinic. Examination findings included tenderness over the left hip, “grossly normal” strength, no swelling, and non-antalgic gait. (Tr. 394, 396-97.)

         On April 3, 2014, Easton saw Dr. Sykes at Doctors Pain Clinic. At this visit, Dr. Sykes noted left calf spasms, mildly antalgic gait, and Easton's use of a cane. Range of motion was limited in all planes. (Tr. 391-93.)

         At a follow up visit on April 21, 2014, Easton presented with low back pain radiating into the left hip with aching, shooting, stabbing pain that was aggravated by walking or standing too long, and improved with resting or laying on the right side. Easton “continue[d] to note improved quality of life as well as improved level of function with the current medication regimen.” (Tr. 387.)

         Positive exam findings at this visit included varicose veins/phlebitis, nervousness/ anxiety, and mild bursa tenderness to palapation on the left hip. (Tr. 387-90.) Dr. Sykes diagnosed Easton with the following: (1) sacroiliitis; (2) post-lumbar laminectomy syndrome; (3) degeneration of lumbar or lumbosacral intervertebral disc; (4) degenerative osteoarthritis, lumbar/lumbosacral; (5) facet syndrome; (6) chronic pain syndrome; (7) obesity, unspecified; (8) depressive disorder, not elsewhere classified; and (9) bursitis of hip. (Tr. 389.) Dr. Sykes recommended trigger point injections. (Id.) Easton received a left hip injection during this visit. (Id.)

         On April 28, 2014, Easton saw treating physician Timothy J. Goetze, D.O. His exam findings included normal strength, sensation, reflexes, and coordination, full range of motion in the joints, and no swelling. He noted that Easton's back pain was improved and she was having “good success” with medication and a back brace. (Tr. 454-58.)

         Easton saw Dr. Goetze again in May, July, and September 2014. At each of these examinations, Dr. Goetze noted normal exam findings. (Tr. 448-51, 490-94, 498-500, 503-05.)

         On December 29, 2014, Dr. Goetze recorded lumbar flexion to 30º. (Tr. 483-87.) He also ordered an x-ray of Easton's spine. (Id.)

         A January 2, 2015 x-ray of Easton's spine showed there was no pedicle screw fracture at the L4-5 fusion. The study was unremarkable. (Tr. 481.)

         On March 12, 2015, Easton underwent bilateral lower extremity ultrasound and doppler. This exam resulted in normal findings. There was no significant major vessel arterial disease in either lower extremity. (Tr. 478-79.)

         During a March 27, 2015 appointment with Dr. Goetze, Easton complained of joint pain, back pain, and muscle aches. Active lumbar flexion was to 10º. The treatment records note chronic back pain and bilateral edema. Dr. Goetze determined Easton's back condition had deteriorated. She was to continue Neurontin, Percocet, and the back brace. The left leg edema remained unchanged. Dr. Goetze ordered an MRI and an echocardiogram. (Tr. 520-23.)

         An April 14, 2015 MRI of the lumbar spine showed bilateral pedicle screws present at ¶ 4 and L5 creating artifact. Scar tissue was noted posteriorly about the thecal sac at the L4-5 level. Minimal annular bulging was present at ¶ 3-4 without thecal sac compromise. Moderate hypertrophic changes of the facets were seen at ¶ 3-4 and L5-S1. The lateral recesses at ¶ 3-4 correspond by the hypertrophic[6] facets. Ligament flavum hypertrophyii was also present at this level. The impressions from this MRI included post-surgical changes at ¶ 4 and L5 as described above, annular bulging at ¶ 3-L4, and osteoarthritis of the facets at ¶ 3-L4 and L5-S1, and the lateral recesses at ¶ 3-L4 were mildly compromised. (Tr. 173, 516-17, 789-90.)

         On April 24, 2015, Easton saw Dr. Goetze for general and cardiovascular complaints of fatigue. Her back pain was chronic and unchanged. Easton rated her pain as a 6/10, radiating down her legs. Dr. Goetze determined her active lumbar flexion to be 10°. Dr. Goetze instructed Easton to continue with the back brace, Percocet, and NSAIDs. He increased her dosage of Neurontin. Her insurance would not cover a TENS unit. (Tr. 174, 625-29.)

         On June 29, 2015, Dr. Goetze completed a State Agency Medical Report form. Dr. Goetze reported seeing Easton from August 1, 2011 to April 24, 2015. He opined Easton's diagnoses consisted of chronic back pain from degenerative lumbar spine, stenosis, herniation, hypertension, tobacco use, and obesity. He described Easton's medical condition as daily, chronic low back pain with radiation into her legs for five years since 2011 that was worse with any movement. Pertinent findings on clinical examination included tenderness with palpation and any movement since her first visit in August 2011. Surgical intervention required was an L4-5 fusion. Easton's daily medications consisted of Percocet, ibuprofen, and Neurontin. While these medications decreased her pain to make her functional, Easton continued to experience daily pain. Dr. Goetze noted Easton used a back brace and TENS unit daily and was very compliant with therapy. Dr. Goetze prescribed therapy. Easton responded well to therapy, but received a limited decrease in pain with therapy. (Tr. 574-75.)

         Dr. Goetze opined that Easton's medical conditions resulted in the following limitations on her ability to perform sustained work activity:

• Inability to sit, stand, or walk in any consistent manner due to pain;
• Cannot bend over;
• Cannot lift anything over 10 pounds;[7] and
• Requires frequent breaks.

(Id.)

         On August 3, 2015, Easton saw Dr. Goetze for aching back pain with an intensity of 9/10. However, Dr. Goetze's examination revealed normal findings and lumbar flexion to 90º. Her chronic back pain and benign essential hypertension remained unchanged. Dr. Goetze noted Easton had “moderate relief with [her] current regiment [sic].” (Tr. 616-20.)

         On September 25, 2015, Easton saw Dr. Goetze for an acute visit. Diagnoses were lumbar spinal stenosis, degenerative disc, lumbar and obesity. Easton complained of her left three toes being painful for one week and the pain was a 10/10 with burning radiation into her back. There was no trauma and moderate relief with Percocet. Dr. Goetze's examination showed normal findings except for decreased breath sounds. (Tr. 647-52.)

         On November 3, 2015, Dr. Goetze completed a second State Agency Medical Report form. Dr. Goetze explained that Easton underwent a lumbar fusion in 2011 with limited relief. He opined she got no pain relief with NSAIDs, muscle relaxers, or physical therapy. Easton required daily narcotics and Lyrica, which reduced her pain but led to lethargy. Dr. Goetze noted that a neurosurgeon in May 2015 suggested no further surgical intervention. (Tr. 471-72.)

         Dr. Goetze opined that Easton's medical conditions resulted in the following limitations on her ability to perform sustained work activity:

• Inability to bend at the waist beyond 15º, although in response to the final question Dr. Goetze opined Easton cannot bend at all;
• Cannot squat;
• Cannot lift anything over 10 pounds; and
• Gets fatigued quickly.

(Id.)

         As of November 17, 2015, Easton's medical problems included pain in joint involving lower leg, left leg edema, Vitamin D deficiency, lumbar spinal stenosis, degenerative disc disease of the lumbar spine, obesity, other malaise and fatigue, anxiety, depression, benign essential hypertension, and chronic back pain. Prescribed ...


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