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Miller v. Saul

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

December 3, 2019

DENNIS MILLER, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Dennis Miller (“Plaintiff” or “Miller”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying his combined application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

         I. PROCEDURAL HISTORY

         In October 2009, Miller filed an application for SSI, alleging a disability onset date of November 1, 1998. (Transcript (“Tr.”) at 154-155.) The application was denied initially and upon reconsideration, and Miller requested a hearing before an administrative law judge (“ALJ”). (Tr. 100-101.)

         On July 19, 2011, an ALJ held a hearing, during which Miller, represented by counsel, and an impartial vocational expert (“VE”) testified. (Id. at 2195.) On February 24, 2012, the ALJ issued a written decision finding Plaintiff was not disabled. (Id. at 9-32). The ALJ's decision became final on June 21, 2013, when the Appeals Council declined further review. (Id. at 1-3.) Miller appealed that decision to the District Court, and on August 12, 2014, the Court vacated the ALJ's decision and remanded the matter for further proceedings. (Id. at 2285.) The Appeals Council implemented the Court's decision by issuing an order of remand that directed the ALJ to consolidate the remanded application with a second application for SSI benefits, filed on August 5, 2014, and issue a unified decision on both applications. (Id. at 2397-98, 2328.)

         The ALJ held a second hearing on March 29, 2016, during which Miller, represented by counsel, and a VE testified. (Id. at 2225.) On August 31, 2016, the ALJ issued a written decision finding Plaintiff was disabled from September 29, 2010 through February 28, 2012. (Id. at 2154-94.) The ALJ's decision became final on January 10, 2017, when the Appeals Council declined further review. (Id. at 2146-49.)

         On February 7, 2019, Miller filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12 & 15). Miller asserts the following assignment of error:

(1) The ALJ erred in finding that Plaintiff was no longer disabled as of February 29, 2012 based upon a finding that medical improvement had occurred.

(Doc. No. 12.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Miller was born in June 1971 and was a “younger” person under social security regulations at the time of both of his administrative hearings. (Tr. 2183; Doc. No. 12 at 4.) See 20 C.F.R. §§ 404.1563 & 416.963. He has a high school education and is able to communicate in English. (Tr. 2183.) He has no past relevant work. (Id.)

         B. Relevant Medical Evidence[2]

         1. Mental Impairments

         The ALJ identified bipolar disorder, intermittent explosive disorder, and antisocial personality disorder as severe impairments, and, on remand, the ALJ was directed to (and did) address findings of the state agency reviewing psychologists. (Id. at 2159, 2163.) However, Miller chose not to cite or discuss any evidence relating to his mental impairments in his Brief, so the Court will not recite it here.

         2. Physical Impairments

         In November 1998, Miller injured his back while carrying a full 40-gallon hot water tank, estimated to weigh 150 pounds, down a flight of stairs. (Id. at 332.) He fell down the stairs, “landed on his tailbone and exploded 3 discs in his lower back.” (Id. at 546.)

         On July 11, 2000, after extensive non-operative treatment failed to alleviate Miller's back pain, Dr. Jerold Gurley performed an anterior lumbar interbody fusion, L4-L5 and L5-S1, at Lutheran Hospital. (Id. at 261.) Following this surgery, Miller fell, and his back pain resumed. (Id. at 256.) An MRI taken on October 11, 2000, showed thickening of the nerve roots suggestive of arachnoiditis, and mild left foraminal narrowing. (Id.) A lumbar spine CT performed on March 28, 2001 was “equivocal, ” showing no loosening or implant failure, but some gas lucency at the L5-S1 and degenerative changes. (Id. at 227-28.)

         In October 2001, Dr. Gurley operated again to remove Miller's spinal instrumentation. (Id. at 710.) He found evidence of pseudoarthrosis and a failed fusion at ¶ 5-S1. (Id.)

         Dr. Gurley operated a third time in November 2001 because Miller's wound had become infected and needed to be irrigated and debrided. (Id. at 693.)

         On February 19, 2002, Dr. Gurley performed a trigger point injection to treat pain at Miller's bone graft site and neuroma. (Id. at 674.)

         In March 2002, Miller began to see Dr. Charles Choi at the Fairview Hospital Pain Management Center for treatment of his back pain. (Id. at 1211.) Dr. Choi initially treated Miller with medication and epidural steroid injections, but these did not provide lasting improvement. (Id.)

         A CT scan of Miller's lumbar spine performed in May 2002 showed solid bony fusion with no evidence of lucency or stenosis, and some narrowing at ¶ 5-S1. (Id. at 631.)

         In July 2002, Dr. Choi concluded that scar tissue from Miller's laminectomy was impinging on his lumbar nerve root, “causing severe pain and dramatically altering [his] ability to do normal activities of daily living.” (Id.) Dr. Choi recommended a dorsal (spinal) column stimulator. (Id.)

         On July 29, 2002, physical therapist Ellen Straub performed a functional capacity evaluation. (Id. at 548-554.) She found that Miller was unable to lift anything greater than 10 pounds, and unable to squat, climb, or crouch. (Id.) She opined that he was limited to “occasional” sitting, standing, walking, lifting, reaching, and kneeling. (Id. at 553.) Under the category of vital signs she wrote, “No work: do not lift anything greater than 10 pounds.” (Id. at 548.)

         In December 2002, an x-ray of Miller's spine showed loss of disc space height at ¶ 4-L5 and L5-S1 and degenerative changes to the endplates at ¶ 5-S1. (Id. at 322.)

         In August through November 2003, Miller received multiple therapeutic nerve blocks, but reported only “a little” improvement in his ability to function, although they did “help with pain swelling.” (Id. at 367-69, 374-75, 436-37.)

         An EMG performed on November 26, 2003, showed a mild right S1 nerve root entrapment, and slower H-reflex response in Miller's right leg when compared to both normative standards and his left leg. (Id. at 321.)

         On February 5, 2004, Dr. Gordon Zellers evaluated Miller's records and examined him in connection with his worker's compensation claim. (Id. at 1135-40.) Dr. Zellers opined that Miller's recovery from the 1998 injury was “fair to poor, ” and recommended that he be evaluated for implantation of a spinal cord simulator, as he had reached the level of maximum medical improvement possible with surgery and other treatments. (Id. at 1140.) He opined that Miller was limited to sedentary activities, with a five-pound maximum lifting limit, and no prolonged sitting, standing, or ambulatory activities, and no climbing, bending, or exposure to hazards. (Id.)

         On February 17, 2004, physical therapist Aryeh Weiss performed a functional capacity evaluation of Miller. (Id. at 802-809.) Her findings were similar to those of the 2002 functional capacity evaluation: she opined that he was limited to sedentary activity with only “occasional” standing, walking, and kneeling. (Id.) She also noted that his primary limiting factor was a refusal to put forth maximal effort. (Id.)

         On October 25, 2004, Dr. Karl Metz performed an independent medical examination on Miller in connection with his worker's compensation claim. (Id. at 624-27, 761.) Dr. Metz concluded that the February 2004 functional capacity evaluation was “a reasonably accurate assessment of [Miller's] capabilities.” (Id. at 761.) He opined that Miller's back injury had reached “maximum medical improvement” and was unlikely to improve further, and his conditioning had deteriorated to the point that he “is not capable of returning to the workforce at this time.” (Id. at 627.)

         In November 2004, Miller was evaluated by the Cleveland Clinic's Pain Medicine Center. (Id. at 611-13.) Miller reported that he spent 20 hours a day reclining, and showed “severe functional impairment” on the Pain Disability Index. (Id. at 612.)

         An x-ray taken in December 2005 showed mild spondylosis at ¶ 2. (Id. at 588.)

         On September 13, 2006, Dr. Louis Keppler surgically removed Miller's spinal fusion hardware. (Id. at 297.) On October 26, 2006, Dr. Keppler noted that Miller's “x-rays look great. His wound is well healed.” (Id. at 289.) He recommended a comprehensive rehabilitation program to address Miller's “markedly deconditioned state, ” and opined “although he may never be perfect physically, there is certainly room for improvement in his condition with appropriate training.” (Id. at 290.)

         An x-ray taken in August 2008 showed grade 1 retrolisthesis of L3 on L4, likely associated with the fusion created by Miller's earlier surgery. (Id. at 958.)

         An x-ray taken in September 2008 showed facet osteoarthropathy at ¶ 3-4 without further pathology. (Id. at 984.)

         In October 2009, Miller broke his right wrist in a motorcycle crash. (Id. at 1283.) On October 23, Dr. Alix Rosenstein at MetroHealth manually set and immobilized his fracture, but noted “continued poor alignment and joint dislocation” on x-rays and recommended Miller be admitted for operative repair. (Id. at 1286.) Miller declined admission, but agreed to consider outpatient surgery.[3] (Id.)

         On November 5, 2009, Miller went to the Emergency Department at St. John's Hospital complaining of tightness in his cast and swelling in his fingers. (Id. at 1437.) The doctor there made two cuts in his cast to relieve the pressure, wrapped it with an ace bandage for stability, and proscribed more Percocet. (Id. at 1437-40.)

         On November 9, 2009, Miller returned to MetroHealth complaining of pain in his wrist and seeking additional narcotics. (Id. at 1279.)

         On November 18, 2009, Miller again returned to MetroHealth, where “slight swelling” was noted around his right wrist, and a new cast was applied. (Id. at 1277-78.)

         On December 7, 2009, Miller went to the Emergency Department at St. John's, where the doctor noted a reduced range of motion in his right wrist and numbness in his pinky finger, and diagnosed right wrist tendinitis. (Id. at 1419-21.) He was given a wrist splint. (Id. at 1421.)

         On February 8, 2010, Miller was seen by Dr. Ryan Garcia at the MetroHealth Orthotics Department. (Id. at 1518.) He reported pain in his right wrist and believed it was infected. (Id.) Dr. Garcia observed diffuse swelling and tenderness around Miller's wrist, and a reduced range of motion. (Id.) He noted that Miller had not participated in Occupational Therapy since his injury. (Id.)

         On February 16, 2010, Dr. Kevin Malone at MetroHealth operated on Miller's wrist to replace failed hardware in his wrist fracture. (Id. at 1512-13.) A March 15, 2010 examination showed wounds “healing nicely, ” with no evidence of inflamation or irritation, and “near full” range of motion in Miller's fingers. (Id. at 1505.) On March 29, Dr. Malone removed the frame and provided a wrist brace. (Id. at 1502.) At an April visit, Dr. Amar Mutnal at MetroHealth reported that Miller still had pain in his wrist, and advised him that radiocarpal fusion would be a future option if he could stop smoking and using nicotine products completely. (Id. at 1604.)

         On June 7, 2010, Miller was seen by Dr. Aphrodite Papadakis in MetroHealth's Family Practice Department. (Id. at 1596.) His primary complaint was swelling in his foot and leg, but he also reported numbness in his right thumb, middle, and index fingers. (Id.)

         From June 14-15, 2010, Miller was admitted to Fairview Hospital for antibiotic treatment of leg cellulitis related to the unhealed wound on his left leg. (Id. at 1957-58.)

         On July 16, 2010, Miller sought treatment of his leg at the Family Practice Department of MetroHealth. (Id. at 1665.) The doctors noted slight swelling, but no sign of infection, and recommended Miller elevate his feet and avoid prolonged standing or crossing his legs. (Id. at 1668.)

         An August 17, 2010 x-ray of his right wrist showed no evidence of an acute fracture, but a “progression of findings associated with scapholunate ligament disruption.” (Id. at 1681.)

         On September 29, 2010, Miller was admitted to Fairview Hospital after a head-on collision with a semi truck fractured his left femur. (Id. at 1932.) The fracture required surgery, and from September 29 - October 5, Miller was treated at Fairview Hospital. (Id. at 1929-41.) From October 20-23, Miller was again admitted to Fairview Hospital and treated for a possible infection of his left knee. (Id. at 1702.)

         On November 27, 2010. Miller was treated for injury pain at St. John Medical Center. (Id. at 1678.) X-rays showed a fracture in the fixation screw used to repair his fractured femur, although the fracture was otherwise healing well. (Id.)

         On January 19, 2011, an MRI of Miller's left knee showed subtle chondral fissuring of the patellar apex. (Id. at 2001.) On January 24, Miller went to the Emergency Department at Lutheran Hospital for treatment of pain in his left thigh, and the examination showed laxity and medical stress in his knee. (Id. at 1801.) An x-ray taken that day showed that the rod aligning his fracture had broken, although the alignment of the bone was unchanged. (Id. at 1807.)

         On March 3, 2011, Dr. Brendan Patterson, an Orthopaedic surgeon at MetroHealth, operated to remove the implant in Miller's left femur, which had failed to heal and become infected. (Id. at 2547-49.)

         On September 14, 2012, Miller saw Dr. Patterson for a follow up evaluation of his left femur, which had been broken. (Id. at 2504.) Dr. Patterson noted that Miller's left leg was 1.5" shorter than his right, a difference “currently accommodated by a . . . internal shoe lift.” (Id.) Miller told Dr. Patterson that he was “having difficulty with falling, ” and had “fallen several times over the past few months.” (Id.) Since his femur had healed, Dr. Patterson referred Miller for a neurological evaluation. (Id.)

         On October 1, 2012, Dr. Mark Winkleman, a neurologist at MetroHealth, evaluated Miller. (Id. at 2498.) Miller told him that his falls began a year ago, and were monthly at first, but now occurred on a weekly basis. (Id.) Miller said his falls were all alike: he would be standing and walking when suddenly his right leg gave way, causing him to fall. (Id.) Dr. Winkleman was puzzled by Miller's condition, but noted decreased pinprick sensation in Miller's right foot and leg, and observed that Miller was unable to tandem walk. (Id. at 2501.) He also noted that Miller suggested additional pain medication might help. (Id.)

         In January 2013, Miller returned to Dr. Keppler for the first time since 2007, complaining of severe back and leg pain. (Id. at 3276.) On February 13, 2013, Dr. Keppler performed another lumbar fusion on Miller, this time at the L3-4 level. (Id. at 3321.) After the surgery, Dr. Keppler noted that Miller' analgesic use “exceeded our expertise in pain management” and referred Miller to a pain management specialist, explaining:

A fusion surgery takes anywhere from 6-9 months to heal. Simply to get over the surgery itself takes about three months for the incision to heal, inside and out. For three months, he is to avoid absolutely no bending, lifting or ...

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