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Minor v. Commissioner of Social Security

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

December 4, 2019



          James R. Knepp II United States Magistrate Judge


         Plaintiff Crystal Joye Minor (“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). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 12). For the reasons stated below, the undersigned affirms in part, and reverses and remands in part, the decision of the Commissioner.

         Procedural Background

         Plaintiff filed for DIB in December 2015, alleging a disability onset date of May 31, 2010. (Tr. 176-77). Her claims were denied initially and upon reconsideration. (Tr. 81, 99). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 119-20). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on December 12, 2017. (Tr. 30-62). On February 14, 2018, the ALJ found Plaintiff not disabled in a written decision. (Tr. 15-23). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§ 404.955, 404.981. Plaintiff timely filed the instant action on September 27, 2018. (Doc. 1).

         Factual Background

         Personal Background and Testimony

         Born in 1978, Plaintiff was 31 years old on her alleged onset date, and 37 on her date last insured. See Tr. 176. She had past work as a home health aide and nursing assistant. See Tr. 22, 55-56.

         Plaintiff lived alone, and her mother lived in the same trailer park. (Tr. 36-37). Plaintiff was able to drive and drove to the hearing. (Tr. 37-38). She was receiving Worker's Compensation and food stamps at the time of the hearing. (Tr. 38).

         Plaintiff injured her back lifting a patient while working for hospice in 2009. (Tr. 39). She subsequently worked light duty for a year, but was then let go because she could no longer perform the job. (Tr. 43). Plaintiff believed she was unable to work due to her chronic pain, back and leg problems, and depression; she had difficulty sitting or standing for lengthy periods. Id. She could not do things she used to do like bowling. (Tr. 45). After her first surgery, Plaintiff felt better, but then fell and it set her back. (Tr. 48-49). She “tried everything” for her pain including aquatic therapy, physical therapy, acupuncture, and epidural injections. (Tr. 49). When those were unsuccessful, she had a trial spinal cord stimulator. Id. It “seemed to help a little bit”, so she had a permanent stimulator placed. Id. But then it “got turned” and she could not charge it, so she returned to have it “turned” back. (Tr. 50).

         Plaintiff received therapy and psychiatric treatment for her depression and anxiety. (Tr. 44). Counseling “help[ed] sometimes”. Id. She watched television and was able to follow storylines, and “[f]or the most part” remember what happened week to week on a television show. (Tr. 45-46). Plaintiff's mental state varied depending on what she was worried about, and her frustration with her physical condition. (Tr. 52-53). She had “a little hard time concentrating and focusing on certain things”. (Tr. 53).

         On a typical day, Plaintiff took medication, watched television or played games on her phone, showered, and got dressed. (Tr. 46). She stayed home unless she had a doctor's appointment; sometimes her mom visited and sometimes she took her mother to appointments. (Tr. 46-47). She ate lunch out with her mother about once per week. (Tr. 47). She was able to shower, dress herself, make simple meals, grocery shop (often with help), put groceries away, and do laundry. (Tr. 47-48). Plaintiff used a scooter at the grocery store, but not at smaller stores or if she only needed a few items. (Tr. 50).

         Plaintiff estimated she could walk for about ten to fifteen minutes before needing to sit. (Tr. 51). During the hearing, she noted “[a] little bit” of pain in her hips after sitting for about 30 minutes. Id. Relevant Medical Evidence Physical Health Plaintiff injured her back working as a home health aide in 2009 and was awarded Worker's Compensation benefits. See Tr. 1813. She was treated for L4-L5 and L5-S1 disc bulges, lumbar post-laminectomy syndrome, sacroiliitis, L4-L5 lumbar disc displacement, and L5-S1 radiculitis. See Id. Records from chiropractor David Leone, D.C., at the Spine and Pain Institute in 2011 reveal Plaintiff reported a lumbar pain level ranging from five to eight out of ten, muscle cramps and weakness, as well as psychological symptoms. See Tr. 1039-40, 1045-52, 1057-1155. She underwent both chiropractic manipulation and acupuncture. See Id. Dr. Leone's physical findings included: moderate generalized tenderness in the lumbar area, moderately restricted movement in all directions, pain in all directions; he also observed decreased sensation in the dorsal aspect of the left foot and lateral aspect of the calf, as well as a positive straight leg raise on the left at 30 degrees. See id.

         In 2011 and early 2012, Plaintiff saw Karen Hodakievic, CRNP, and Bina Behta, M.D., at the Spine and Pain Institute. See Tr. 979-1014, 1019-22, 1026-30, 1035-1038, 1041-1044, 1053-56. They noted examination findings of reduced mobility and range of motion, slow and antalgic gait, moderate generalized tenderness in the lumbar area, right lumbar stenosis, movement moderately restricted in all directions, decreased left lateral calf sensation as compared to the right, bilateral hyporeflexic reflexes, and negative straight leg raising tests. See Id. Ms. Hodakievic and Dr. Behta refilled Plaintiff's pain medications. See Id. In May 2012, Plaintiff reported her medications “take the edge off the pain and allow her to maintain her [activities of daily living]” and that her spine symptoms were improving. (Tr. 979).

         An April 2011 EMG/nerve conduction study was “suggestive of a left S1 chronic active radiculopathy.” (Tr. 1112). In August and September 2011, Plaintiff also underwent lumbar epidural steroid injections. See Tr. 1015-18; 1023-25; 1031-34.

         A January 2013 lumbar spine MRI showed multilevel degenerative changes, most prominent at ¶ 5-S1 and L4-L5 showing moderate canal narrowing at ¶ 3-L4. (Tr. 1205).

         A May 2014 MRI of Plaintiff's lumbar spine showed postsurgical changes at ¶ 5-S1, effacement of the left lateral recess and mass effect on the left ventral aspect of the thecal sac thought largely to be due to post-operative granulation tissue, as well as underlying residual or recurrent disc bulging suspected. (Tr. 380). It also revealed degenerative changes most pronounced at ¶ 5-S1 and L4-L5. (Tr. 380-81).

         At a July 2014 visit with Ms. Hodakievic, Plaintiff reported her lumbar spine pain was moderate, constant, and stable. (Tr. 1400). It radiated to her left leg (causing numbness, spasms, and tingling), and was aggravated by walking and standing. Id. Her medications took the edge off her pain, and allowed her to perform her activities of daily living. Id. On examination, Ms. Hodakievic observed Plaintiff had an antalgic gait, and normal paraspinous and lower extremity muscle tone with no spasm. (Tr. 1403). She had tenderness to palpation in her bilateral gluteal, paraspinous, and lumbar regions. Id. She had limited lumbar range of motion with pain, and her left knee, ankle, and foot strength was limited. (Tr. 1403-04). Straight leg raising caused “back pain only” bilaterally. (Tr. 1403). Plaintiff had some reduced reflexes in her patella and Achilles, and decreased sensation at right S1 and left L5 and S1. (Tr. 1404). Dr. Mehta and Ms. Hodakievic noted similar findings through 2014 and 2015. See Tr. 1407-77, 1487-98, 1504-21.

         In December 2014, Krishna Satyan, M.D., wrote a letter stating Plaintiff's symptoms and MRI findings were related to her original work injury. (Tr. 373). She noted symptoms of moderate to severe low back and left leg pain, with numbness and tingling in the left foot. Id.

         A January 2015 CT scan of Plaintiff's lumbar spine showed multilevel lumbar degenerative disc disease and probable central canal stenosis at multiple levels. (Tr. 365). It also revealed probable right neural foraminal narrowing at ¶ 4-L5 and possible right neural foraminal narrowing at ¶ 3-L4. Id.

         In February 2015, Plaintiff underwent a hemilaminotomy for recurrent disc displacement and a left-sided hemilaminotomy for microdiscectomy. (Tr. 344-45). In March 2015, Plaintiff started physical therapy. (Tr. 279). She reported waking due to pain, difficulty washing, dressing, and putting on shoes; she was unable to do laundry, cooking, or cleaning. Id. On examination, the physical therapist observed some lower extremity reduced muscle strength, poor body mechanics, and a moderate postural shift to the left (Tr. 280); he recommended six weeks of physical therapy (Tr. 282). He noted Plaintiff's examination was “consistent with [left] postlateral derangement of the lumbar spine and recent surgery of the [low back].” Id. Plaintiff continued physical therapy through July 2014. See Tr. 284-95. In July, she had made “excellent progress” toward several of her therapeutic goals, but no change in her goal regarding pain. See Tr. 284-85.

         In September 2015, Plaintiff saw John Butler, M.D., complaining of mild to moderate back pain radiating to the left leg and foot; she described “jolts” in her left foot. (Tr. 495). On examination, Dr. Butler found Plaintiff had an antalgic gait, a normal straight leg raise, some reduced strength in her left lower extremity, and pain with knee flexion and extension. (Tr. 496). He assessed improved radiculitis and renewed medications. (Tr. 497).

         In April 2016, after her date last insured[1], Plaintiff saw Ms. Hodakievic. (Tr. 953). She reported improvement with prednisone, but continued lumbar and leg pain. Id. On examination, she had decreased range of motion, pain, and spasm in her lumbar spine; she also had an abnormal gait and an abnormal straight leg raise test. (Tr. 955).

         Plaintiff also underwent additional physical therapy in 2016. (Tr. 1548-1608). The July 2016 discharge summary notes Plaintiff was able to cook for about fifteen minutes with pain in her lower back and hips, had difficulty vacuuming, was able to grocery shop with a scooter, and able to carry some groceries. (Tr. 1548). On examination, Plaintiff had some reduced muscle strength in her lower extremities (improved since May), and some reduced range of motion in her lumbosacral spine (also improved since May). (Tr. 1549). Plaintiff was noted to have made “some” to “good” progress on her therapy goals, but was discharged from therapy due to a plateau in progress. (Tr. 1550-51); see also Tr. 1549 (“Client appears to have reached a plateau at this time until her L knee condition is resolved.”).

         In September 2016, Plaintiff saw Todd Hochman, M.D., after being discharged from Dr. Mehta's practice. (Tr. 1725). She reported back pain associated with numbness and tingling in the hips and lower extremities, worse on the left, and knee pain. Id. On examination, Plaintiff was in moderate discomfort, had some flattening of the normal lumbar lordosis, midline discomfort, paraspinal muscle spasm and pain, and pain with straight leg raising. (Tr. 1726). She had some weakness in the left ankle and a diminished patellar reflex on the left. Id. Dr. Hochman prescribed Topamax and referred Plaintiff to pain management. (Tr. 1727).

         At a follow up appointment with Dr. Hochman in April 2017, Plaintiff was “at her wits end” and “extremely frustrated.” (Tr. 1719). She reported her medications helped with the pain, but she wanted to pursue something to get off medication. Id. Dr. Hochman noted Plaintiff's pain management physician recommended a spinal cord stimulator trial. Id. On examination, Plaintiff was in moderate discomfort; she had spasm and trigger points, discomfort with a straight leg raise (greater on the left), and weakness. Id. Dr. Hochman opined, for purposes of Worker's Compensation, that Plaintiff had not yet reached maximum medical improvement and should be authorized for the stimulator trial. (Tr. 1720). Plaintiff had similar physical findings, including an antalgic gait, in June. (Tr. 1717).

         Plaintiff had a trial spinal cord stimulator implanted in her back in June 2017, and subsequently a permanent stimulator implanted in August. See Tr. 1785, 1800, 1813. In September 2017, Dr. Hochman noted Plaintiff had moderate discomfort, some tenderness in the lumbar region, weakness, and pain with straight leg raising on the left. Id.

         Opinion Evidence

         In February 2016, State agency physician Esberdado Villanueva, M.D., reviewed Plaintiff's records, and opined Plaintiff could perform the lifting requirements of light work (20 pounds occasionally and 10 pounds frequently), stand or walk for four hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. (Tr. 75). He ...

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