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Newsome v. Commissioner of Social Security

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

December 5, 2019




          Thomas M. Parker, United States Magistrate Judge

         I. Introduction

         Plaintiff Curtis D. Newsome seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b). Because the Administrative Law Judge (“ALJ”) failed to apply proper legal standards in evaluating Listing 1.04A and Newsome's subjective symptom complaints, I recommend that the Commissioner's final decision denying Newsome's application for DIB be VACATED and that Newsome's case be REMANDED for further consideration.

         II. Procedural History

         On April 12, 2016, Newsome protectively applied for DIB. (Tr. 161).[1] He alleged that he became disabled on January 25, 2016, due to back pain, insomnia and anxiety. (Tr. 161, 191). The Social Security Administration denied Newsome's application initially and upon reconsideration. (Tr. 60-85). Newsome requested an administrative hearing. (Tr. 110). ALJ Peter Beekman heard Newsome's case on January 24, 2018, and denied the claim in an April 26, 2018, decision. (Tr. 15-25). On September 21, 2018, the Appeals Council denied further review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3). On November 20, 2018, Newsome filed a complaint to seek judicial review of the Commissioner's decision. ECF Doc. 1.

         III. Evidence

         A. Relevant Medical Evidence

         X-rays of Newsome's lumbar spine on May 15, 2015 showed “mild degenerative disc disease at the L4-L5 level.” There was also posterior displacement of the distal coccyx likely traumatic, acute or old. (Tr. 249).

         On September 3, 2015, Newsome went to the emergency room complaining of low back pain. He reported chronic back pain and felt that he had overworked it. He had decreased range of motion, tenderness, bony tenderness, pain and spasms. His gait was painful and abnormal. He was diagnosed with chronic back pain, sciatica - right, history of degenerative disc disease. (Tr. 363). An X-ray of his lumbar spine on September 10, 2015 showed loss of disc height and endplate spondylosis at ¶ 4-L5 and L5-S1, and degenerative arthrosis of the lower lumbar facet joints. (Tr. 351).

         Newsome went to the emergency room on October 3, 2015 complaining of low back pain. He reported chronic low back pain with this episode lasting “for a few weeks.” He reported pain shooting down his left leg. His pain was exacerbated with movement. (Tr. 331). X-rays of his left hip showed no acute fracture or dislocation. X-rays of his lumbar spine showed multilevel degenerative disc disease with disc space narrowing as L1-L2, L3-L4, and L5-S1; spurring at ¶ 1-2, L4-5 and L5-S1; and degenerative facet throughout the head L5-S1. (Tr. 248). A CT scan of his abdomen showed mild urinary bladder wall thickening; L4-L5 disc herniation with suspected inferior extrusion resulting in deformity of the thecal sac. (Tr. 260). He was diagnosed with lumbar disc herniation; acute exacerbation of chronic back pain; sciatica; and tachycardia. (Tr. 332).

         On October 27, 2015, Newsome saw Orthopedist Jason Eubanks, M.D., for tailbone injury and a two month history of back pain radiating into the L5 distribution to the left leg. He reported that his pain was better when standing and worse with sitting. He also reported numbness and tingling. (Tr. 246). Examination showed 5/5 strength in the lower extremities, positive straight leg raising test, and no pain with range of motion in the hips. (Tr. 247). Dr. Eubanks' impression was lumbar radiculopathy, secondary to an L-4-5 disc herniation. He recommended a trial of steroid injections. (Tr. 249).

         On November 8, 2015, Newsome saw Melinda Lawrence, M.D., in the Pain Medicine Clinic. He complained of low back pain and left leg pain for the past two months. He had sharp shooting and burning pain and was taking Percocet for relief. He reported that the pain was significantly impacting his life and making it difficult to work. He had weakness in the left lower extremity. Physical examination showed 4/5 motor strength in the left leg, antalgic gait, and decreased sensation in L4-L5 distribution of left leg. Dr. Lawrence assessed chronic lumbar radiculopathy, lumbar disc displacement, and lumbar disc disease. Dr. Lawrence planned for a left-sided L4-L5 lumbar transformal epidural steroid injection and referred Newsome to physical therapy. (Tr. 258-260). Newsome underwent a left L4 and L5 lumbar epidural steroid injection on November 25, 2015. (Tr. 256).

         On January 6, 2016, Newsome went to the emergency room complaining of severe right sided rib pain; he thought he pulled a muscle. He had awakened to severe pain and felt like an organ was going to burst. He was admitted for chest pain and tachycardia. He had an elevated d-dimer and he was initially tachycardic, with persistent right-sided chest pain, with significant pleuritic nature to it. He developed a reaction to the contrast die, which improved with Benadryl. He was worked up for chest pain, but his serial troponins were negative and there was no recommendation for stress tests. Studies were negative for pulmonary embolism. The final diagnosis was alcohol use, atypical chest pain, elevated AST, elevated d-dimer, elevated liver enzymes, hyperglycemia, hyperlipidemia, hyponatremia; other acute pulmonary embolism without acute cor pulmonale, steatosis of liver, and urinary tract infection. (Tr. 270-320).

         On June 16, 2016, Newsome saw Dr. Anna Serels, M.D. He reported a long history of back pain. He did not have any significant inciting event, but he had been in many bike, moped and motor vehicle accidents over time. His pain was getting worse in the mid, lumbosacral junction, with bilateral radiation to both sides, worse on the left and several times a week would radiate down the entire left leg down to his toes. He had pins and needles in the posterior leg down to the calf and some left lower extremity weakness when getting out of a car. Newsome reported bladder incontinence every couple of months. Physical examination showed decreased lumbar range of motion in all directions, especially forward flexion and extension, which provoked his pain symptoms the most. There was tenderness over all the lumbosacral spinous processes and surrounding paraspinal musculature. Every point palpated in the low back and upper buttock muscles was tender to palpation. Straight leg raising tests were positive bilaterally. Lower extremities strength was 4/5 bilaterally at hip flexors, left ankle dorsiflexion, bilateral ankle inversion and aversion; antalgic gait; and Trendelenburg pattern weakness noted bilaterally when doing single leg raise. (Tr. 466-470). X-rays of Newsome's hips were unremarkable but showed minimal osteophyte formation. (Tr. 463).

         An MRI of Newsome's lumbar spine on June 27, 2016 showed disc herniations at ¶ 4-5 and L5-S1 with left-sided predominance and “left-sided root sleeve involvement.” (Tr. 488-489).

         Newsome followed-up with Dr. Lawrence on June 30, 2016. Examination showed decreased lumbar range of motion, with pain; tenderness to palpation 4/5 bilateral hip flexors, left ankle dorsiflexion, bilateral ankle plantar flexion, and extensor hallucis longus bilaterally; patellar reflex on the right was more diminished compared to left, diminished Achilles reflex bilaterally. His gait was antalgic. Dr. Lawrence's impression was that Newsome's back pain was likely due to lumbar L4-5 radiculopathy, facet arthropathy, and reactive myofascial pain syndrome. (Tr. 548-564).

         Newsome saw Dr. Lawrence again on July 13, 2016. He complained of back pain and continued radicular symptoms to his left side with the L4-L5 distribution. He reported that a L4-L5 epidural steroid injection had decreased symptoms. His pain was now mainly in his back. He had been referred for more injections, but had not been evaluated by a spinal surgeon. His weight was 242 pounds and his BMI was 33.75. Examination showed decreased pinprick sensation at ¶ 4-5 distribution. Newsome had a normal range of motion; his gait was grossly normal; his motor strength was 5/5 in his extremities and his reflexes were normal. (Tr. 789). Dr. Lawrence recommended repeat epidural injections, physical therapy, and Topamax for treatment for chronic lumbar radiculopathy and lumbar disc disease. (Tr. 790-791).

         Newsome saw Dr. Serels on September 1, 2016. He reported no improvement of his lower back pain, which was “unbearable.” Shots and medications did not alleviate his pain and he could not do physical therapy. Epidural steroid injections alleviated his leg pain but not his back pain. He weighed 239 pounds and his BMI was 33.33. (Tr. 550-557).

         Newsome saw Brenda Beck, D.O. on September 7, 2016. He primarily complained of low back pain. He reported that his left lower extremity pain had improved with lumbar transforaminal epidural steroid injections. However, he was now having widespread pain, neck pain that radiated down his spine into the low back, shoulder pain and knee pain. He described his diffuse body pain as a 10/10. He reported his pain was worse with standing, sitting, lying down, walking and bending. Pain was only alleviated with rest. His pain was constant and was interfering with his activities of daily living. (Tr. 643). Physical examination showed diffuse tenderness to palpation along the lumbar paraspinal muscles as well as cervical paraspinal muscles and both knees. Motor strength was 5/5, but he had decreased pinprick sensation on the left lower extremity in L4 and L5 distribution. He had a flat affect. (Tr. 645).

         Newsome saw Dr. Lawrence again on October 26, 2016. (Tr. 781). He complained of pain predominantly in the left L-4 and L5 distribution. The pain was sharp, stabbing and burning. He had weakness in his leg and reported difficulty with ambulation. (Tr. 781). Examination showed decreased sensation in L4-L5 on the left. Dr. Lawrence diagnosed chronic lumbar radiculopathy and lumbar disc displacement. She noted that his low back pain was intractable and that he was no longer benefitting from injections. She referred him back to Dr. Eubanks to discuss interventional procedures. (Tr. 784).

         On October 28, 2016, Newsome saw Dr. Eubanks for a surgical consultation. Newsome reported back pain; leg pain had improved after the series of four steroid injections. Examination showed pain with range of motion of the hips, bilaterally; mildly positive straight leg raising test on the left, and 5/5 strength in lower extremities. Dr. Eubanks reviewed imaging of Newsome's back and noted that there was no significant central canal narrowing. Dr. Eubanks recommended non-operative care and strongly discouraged surgical intervention due to risk for pseudoarthrosis, persistent pain, and even adjacent segment problems. (Tr. 589-591).

         On December 6, 2016, Christopher Furey interpreted an MRI of Newsome's back. The imaging showed mild degenerative changes with no significant stenosis. (Tr. 586).

         Newsome saw Dr. Elisabeth Roter on March 6, 2017 for an evaluation of his arthritis. (Tr. 624). He complained of his whole body, muscles and bones hurting. He was not seeing pain management because the injections did not help. He was taking Lyrica and Tizanidine for fibromyalgia. He reported that his feet and right knee occasionally swelled when he was on them too long. He reported poor sleep and waking stiff and achy in the mornings. He could not lie on his hips. He reported numbness and tingling in his feet and spine, little spasms on the left side of his spine and frequent headaches. Examination showed that he was 210 pounds and had a BMI of 29.29. He had a depressed affect. He held himself very rigidly when she checked his deep tendon reflexes. He had normal strength throughout; bilateral knee crepitus; diffusely tender throughout, particularly in the back, and at 18 fibromyalgia tender points. Dr. Roter's impression was chronic back pain; knee osteoarthritis; and fibromyalgia. She explained that she did not treat fibromyalgia and recommended that he follow up with pain management. (Tr. 622-624).

         Newsome went to pain management on March 13, 2017. He reported pain all over his body, in his low back, mid-thoracic spine, shoulders and hips. He was taking Lyrica, which was helping. He complained of spasms and cramps, pins/needles, numbness, tingling, tenderness and stabbing pain. He complained of pain in both knees, which was worse with walking and movement. He denied any radiation of pain from his low back to his knees. He also reported poor sleep; he was not sure whether Ambien was helping. (Tr. 634). Examination showed multiple tender points above and below the waist on both sides, palpable crepitus of both knees, and tenderness to palpation in his lumbar muscles. (Tr. 637).

         Newsome underwent physical therapy from March 22, 2017 to May 8, 2017. (Tr. 652-664). He attended 9 out of 10 of his initial aquatic therapy sessions. (Tr. 663). At his May 22, 2017 session, Newsome reported that his knees and back still hurt and rated the pain as 8/10. (Tr. 652).

         Newsome followed-up with Dr. Beck on May 25, 2017 for shoulder pain, knee pain and lower back pain. He continued to complain of all over body pain. He reported that Lyrica was alleviating his whole body pain but caused blurry vision at higher doses. (Tr. 725). ...

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