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Abel v. Commissioner of Social Security

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

January 15, 2020

JEFFERY ABEL, Plaintiff,


          Kathleen B. Burke United States Magistrate Judge.

         Plaintiff Jeffery Abel (“Plaintiff” or “Abel”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying his application for social security disability benefits. Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 16.

         For the reasons explained herein, the Court finds that, without a more thorough explanation by the ALJ as to how the state agency reviewing physicians' opinions were entitled to the greatest weight even though their opinions were not based on more detailed or comprehensive information than was available to Abel's treating sources, the Court is unable to assess whether the ALJ's decision is supported by substantial evidence. Accordingly, the Court REVERSES and REMANDS the Commissioner's decision for further proceedings consistent with this Memorandum Opinion and Order.

         I. Procedural History

         On April 19, 2016, Abel protectively filed[1] an application for disability insurance benefits (“DIB”). Tr. 12, 79, 93, 182-183. Abel alleged a disability onset date of February 23, 2016. Tr. 12, 182, 202. He alleged disability due to back surgery, spinal stenosis, diabetes, depression, and degenerative disc disease. Tr. 79, 111, 119, 206.

         After initial denial by the state agency (Tr. 111-114) and denial upon reconsideration (Tr. 119-125), Abel requested a hearing (Tr. 126-127). A hearing was held before the ALJ on January 23, 2018. Tr. 12, 28-78. On March 26, 2018, the ALJ issued an unfavorable decision (Tr. 9-27), finding that Abel had not been under a disability within the meaning of the Social Security Act, from February 23, 2016, through the date of the decision (Tr. 13, 22). Abel requested review of the ALJ's decision by the Appeals Council. Tr. 181. On October 10, 2018, the Appeals Council denied Abel's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6.

         II. Evidence

         A. Personal, vocational and educational evidence

         Abel was born in 1969. Tr. 35, 79, 182, 202. He was 48 years old at the time of the hearing. Tr. 35. Abel is divorced and has one adult daughter. Tr. 36. At the time of the hearing, Abel lived in a ranch-style home with a roommate with whom he had resided for 12 years. Tr. 37. Abel graduated from high school and attended school to obtain a CDL -commercial driving license. Tr. 40-41. Abel last worked in February 2016. Tr. 41. He left work to have surgery. Tr. 41. He received short-term disability for six months. Tr. 41. His past work includes work as a machinist and tool room supervisor (also referred to as tool crib attendant). Tr. 42-49, 70-71.

         B. Medical evidence[2]

         1. Treatment history

         Abel had back surgery in February 2016 and again in May 2017. Prior to these surgeries, Abel complained of back and leg pain as well as problems with his neck and upper extremities. See e.g., Tr. 491-493 (4/20/2015, neurosurgeon Dr. Michael A. Healy, M.D., office notes); Tr. 391 (12/14/2015, primary care physician Dr. Phillip H. Fisher, M.D., office notes). Prior to surgery in February 2016, Abel had multiple injections with some relief. See e.g., Tr. 349, 351, 353, 391, 455, 457, 459-460. Per Dr. Fisher's order, a lumbar MRI was taken on March 23, 2015. Tr. 318-319.

         During an April 20, 2015, visit, Dr. Healy reviewed the lumbar MRI results, noting the MRI showed a disc herniation at the L5-S1 and some degenerative changes and stenosis at ¶ 4-L5 and L3-L4. Tr. 491. Dr. Healy did not see any issues higher up in Abel's spine that could be causing proximal lower level extremity weakness. Tr. 491. Dr. Healy ordered a cervical spine MRI and an EMG/NCV of Abel's bilateral upper and lower extremities. Tr. 492.

         The EMG was performed on May 4, 2015. Tr. 403-404. Dr. Peter P. Zangara, M.D., who performed the EMG indicated that the only abnormal neurophysiologic feature was in the left lower limb and related to an atrophic left extensor digitorum brevis muscle and lack of muscle effort. Tr. 403. There was inadequate criteria for a diagnosis of acute radiculopathy, plexopathy, or more specific neuropathy aside from the left common peroneal nerve. Tr. 403.

         Abel's cervical MRI was performed on May 16, 2016. Tr. 355-356. It showed early degenerative disease and acquired canal narrowing at the C5-C6 and C6-C7 levels that was mild to moderate; there was a focal disc protrusion at the C6-C7 level further narrowing the right lateral recess; and there was no direct cord impingement or critical disease. Tr. 356.

         Dr. Healy ultimately recommended surgical intervention due to failure of conservative treatment. Tr. 430. On February 23, 2016, Dr. Healy performed an L4-L5 Gill decompression followed by an interbody posterior lateral fusion. Tr. 430-433.

         During an April 13, 2016, visit with Dr. Healy, Abel relayed that he had been terminated from work even though Dr. Healy noted that he saw nothing that would have precluded him from returning to work after a legitimate rehab period. Tr. 499. Also, Abel's insurance had been terminated so he was unable to get any physical therapy. Tr. 499. Dr. Healy continued Abel's short-term disability and recommended that he continue with therapy. Tr. 499. Dr. Healy indicated that Abel's x-rays looked good and he could be removed from his brace. Tr. 499.

         Abel saw Dr. Fisher on April 19, 2016, for his back pain. Tr. 379-381. Abel complained of muscle aches and back pain. Tr. 380. Dr. Fisher's musculoskeletal examination findings were “normal overall joint exam, no spinal abnormalities detected, [and] no gross swelling[.]” Tr. 381. Dr. Fisher prescribed Oxycontin. Tr. 380.

         When Abel saw Dr. Healy the following month on May 18, 2016, Abel complained of horrible back and leg pain. Tr. 498. Dr. Healy noted Abel had no insurance and therefore could not attend therapy or obtain any studies. Tr. 498. Healy did not see any profound weakness, sensory loss, or reflex changes. Tr. 498. Abel was tender in his back but there was no clear swelling. Tr. 498. Dr. Healy also noted that Abel had applied for disability and Dr. Healy found that to be “quite reasonable.” Tr. 498. Abel also saw Dr. Fisher on May 18, 2016. Tr. 376-377. Abel was taking Oxycontin for pain. Tr. 377. Abel relayed that Percocet did not “touch the pain[.]” Tr. 377.

         During the remainder of 2016 and throughout 2017, Abel continued to see Dr. Fisher for follow up regarding his back pain. See e.g., Tr. 376-379, 558-568, 604-608, 614-647. During a June 15, 2016, visit with Dr. Fisher, Abel complained of severe back pain with numbness down his leg. Tr. 374. He relayed that he was unable to afford Oxycontin. Tr. 374. Once he had insurance, Abel wanted to start pain management. Tr. 374. Dr. Fisher prescribed Percocet and noted that he would write Abel's prescriptions for pain medications and notify Dr. Healy. Tr. 376.

         When Abel saw Dr. Healy on June 22, 2016, he had Medicaid coverage so Dr. Healy was able to order a lumbar spine MRI that they had been holding off on due to the expense. Tr. 497. Dr. Healy noted that he was continuing to hold Abel off from work. Tr. 497. Dr. Healy planned to reassess following the MRI. Tr. 397. Abel had the lumbar MRI performed on July 15, 2016. Tr. 438-439. It showed normal alignment; some mild edema in the posterior soft tissues without evidence of fluid collection; and postoperative and multilevel degenerative changes, including facet degenerative changes at the L1-2 and L2-3; at the L3-4 - a circumferential disc bulge immediately adjacent to the L3 nerve roots, impingement of the lateral recesses at the L4 nerve roots, facet degenerative changes and thickening of the ligamentum flavum with moderate canal stenosis and mild neural foraminal narrowing; at the L4-5 - epidural fibrosis and facet degenerative changes with mild canal stenosis and mild bilateral neural foraminal narrowing; and at the L5-S1 - circumferential disc bulge with a central and left paracentral protrusion immediately adjacent to the left S1 nerve root, facet degenerative changes, and thickening of the ligamentum flavum with no canal stenosis. Tr. 438.

         Abel saw Dr. Mark D. Hammerly, Ph.D., on September 2, 2016, for a psychological consultative evaluation. Tr. 547-556. Dr. Hammerly diagnosed major depression, recurrent, moderate and anxiety disorder, NOS. Tr. 553. Dr. Hammerly observed that Abel's physical medical issues appeared tied to his psychological issues and he felt that mitigation or alleviation of the physical symptoms was likely necessary in order for there to be significant psychological progress. Tr. 554.

         Abel saw Dr. Fisher on September 7, 2016. Tr. 558-562. Abel was taking Percocet and Oxycontin for his back pain. Tr. 558. He described the severity of his pain as moderate. Tr. 558. Once Abel's insurance was in place, he was planning a second surgery with Dr. Healy - a microdiskectomy. Tr. 558. Physical examination findings were unremarkable. Tr. 560.

         When Abel saw Dr. Fisher on October 5, 2016, he was still having back pain and needed a refill of his Percocet as well as Gabapentin, which he was also taking. Tr. 563. Abel described the severity of his pain as mild-moderate. Tr. 563. Abel had twisted his left ankle a few weeks earlier and he relayed it was painful to walk. Tr. 563. On examination, Dr. Fisher noted musculoskeletal tenderness. Tr. 565.

         During a November 2, 2016, visit with Dr. Fisher, Abel complained of chronic back pain that shot into his buttock and leg on the left and sometimes on the right. Tr. 604. Abel described his pain as severe. Tr. 604. Abel noted some relief with Percocet. Tr. 604. Physical examination findings were unremarkable. Tr. 606. Dr. Fisher provided Abel with a prescription for Percocet. Tr. 607.

         In January and February 2017, Abel saw a pain management physician, Elizabeth Fowler, M.D., at St. Luke's Hospital. Tr. 667-675. During his pain management visits, Abel had abnormal physical examination findings, including positive straight leg raise, limited lumbar range of motion, paraspinal tenderness bilaterally, and antalgic gait to the left. Tr. 670, 673-674. Dr. Fowler discussed various interventions, including increasing Abel's Neurontin, a trial of Zanaflex, an EMG, and lumbar injections. Tr. 670, 674. Abel was considering a second surgery. Tr. 670, 674. At the February 2017 visit, Dr. Fowler noted that Abel was reluctant to proceed with the suggested interventions and he should follow up with Dr. Healy. Tr. 670.

         Because Dr. Healy had recommended a second surgery at the L5-S1 level, in February 2017, Abel sought a second opinion from Dr. David D. Lewis, M.D. Tr. 786-787. On examination, Dr. Lewis observed that Abel was in no apparent distress; strength was equal in his upper extremities; strength was 4 out of 5 on plantar flexion of his left lower extremity; reflexes were normal and symmetric; toes were “downgoing”; Hoffman sign was negative; and gait was normal. Tr. 787. Dr. Lewis reviewed Abel's lumbar MRI and noted that there was evidence of a fusion at ¶ 4-5 and evidence of degenerative disc disease at the L5-S1 level with a disc bulge to the left causing left lateral recess stenosis. Tr. 787. Dr. Lewis informed Abel that he agreed with Dr. Healy's recommendation. Tr. 786.

         Abel saw Dr. Healy for follow up on April 4, 2017, regarding his low back pain and left leg pain. Tr. 595. Dr. Healy noted that following the fusion surgery at the L4-5 level, Abel started to develop symptoms down his left leg that were different. Tr. 595. Dr. Healy observed a tight foraminal area over the left L5-S1 level; positive straight leg raise and absent ankle jerk on the left side; and slight gastrocnemius weakness. Tr. 595. Dr. Healy noted that Abel had been treated conservatively since his surgery in 2016 but he now recommended a hemilaminectomy and microdiskectomy at the left L5-S1 level. Tr. 595.

         On May 11, 2017, Dr. Healy performed a left L5-S1 hemilaminectomy miscrodiskectomy with foraminotomy. Tr. 765-766. Following his surgery, Abel attended physical therapy from May 31, 2017, through July 3, 2017. Tr. 707-764. Physical therapy was put on hold in July 2017 pending further evaluation by a neurologist. Tr. 764.

         Abel saw Dr. Fisher on May 30, 2017, for his lower back pain. Tr. 642. Abel was tender at the surgical site and described his pain level as moderate. Tr. 642. Abel was using a 72-hour fentanyl Duragesic patch which provided him with more consistent pain relief. Tr. 642-643. Dr. Fisher's physical examination findings were unremarkable. Tr. 644-645.

         On Dr. Healy's order, on July 10, 2017, Abel had an EMG and NCV performed due to bilateral radicular S1 pain, numbness and tingling that were worse in the left lower extremity than right lower extremity. Tr. 648. The impression from the testing was “mostly unremarkable”; there was an “[a]bsence of left Peroneal motor to EBD possibly due to EBD atrophy[]”; “mild, chronic Right, and possibly left L5-S1 radiculopathy[]”; and “[n]o motor units recorded in left thigh muscles at all (severe upper lumbar plexopathy, L2-3-4?)[.]” Tr. 648.

         Abel saw Dr. Fisher on July 25, 2017, for a medication check, review of his EMG and his back pain. Tr. 683-686. Abel described his pain level as moderate to severe. Tr. 683. He explained that his fentanyl patching was wearing off by the third day and not providing him much relief on that third day. Tr. 683. Physical examination findings were unremarkable. Tr. 685. Abel had anxiety and reported having a panic attack the day before his visit. Tr. 683, 686.

         On July 26, 2017, Abel saw Dr. Healy, complaining of persistent bilateral lower extremity radicular type pain. Tr. 768. Dr. Healy noted that Abel had not improved with therapy following his surgery. Tr. 768. On examination, Dr. Healy observed no specific weakness, reflex pathology or sensory loss. Tr. 768. Dr. Healy reviewed an MRI and noted that there were some mild changes at the L5-S1 and some mild degenerative changes above the fusion but nothing that looked surgical. Tr. 768. Dr. Healy noted that the EMG showed chronic changes. Tr. 768. Dr. Healy did not feel further surgical intervention was required. Tr. 768. Dr. Healy noted that Abel might require a referral to the pain clinic and he recommended a functional capacity evaluation to see what Abel could and could not do. Tr. 768. Dr. Healy did not feel that Abel would be able to return to his work as a tool and dye maker. Tr. 768.

         Abel saw Dr. Fisher on August 22, 2017, for a medication check, depression, anxiety and back pain. Tr. 688-692. Abel was having an increase in panic attacks. Tr. 688. He described his pain level as severe. Tr. 688. Abel relayed that he was going to be getting a functional capacity evaluation per Dr. ...

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