United States District Court, N.D. Ohio, Eastern Division
SOLOMON OLIVER, JR., JUDGE
REPORT & RECOMMENDATION
M. Parker, United States Magistrate Judge
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.
April 12, 2016, Newsome protectively applied for DIB. (Tr.
161). 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.
Relevant Medical Evidence
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).
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).
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).
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).
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).
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).
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.
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).
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).
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).
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.
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.
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).
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.
December 6, 2016, Christopher Furey interpreted an MRI of
Newsome's back. The imaging showed mild degenerative
changes with no significant stenosis. (Tr. 586).
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).
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).
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).
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). ...